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Digitized  by  the  Internet  Archive 

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Carnegie   Endowment    for    International    Peace 

DIVISION    OF    INTERNATIONAL   LAW 


THE    CONTROVERSY    OVER 

NEUTRAL  RIGHTS  BETWEEN 

THE  UNITED  STATES  AND 

FRANCE  1797-1800 


A  COLLECTION  OF  AMERICAN  STATE  PAPERS 
AND  JUDICIAL  DECISIONS 


EDITED   BY 

JAMES   BROWN   SCOTT 

DIRECTOR 


NEW  YORK 

OXFORD   UNIVERSITY   PRESS 

AMERICAN  BRANCH:  35  West  32nd  Street 
LONDON    TORONTO.  MELBOURNE.  AND  BOMBAY 

1917 


BVRON   S.    ADAMS,    PRINTER 
WASHINGTON,  D.  C. 


^ 


Prefatory  Note 


JC 


President  Wilson,  in  his  address  before  the  Congress  on  February 
26,  1917,  said  that 

we  must  defend  our  commerce  and  the  lives  of  our  people  in  the 
midst  of  the  present  trying  circumstances,  with  discretion  but  with 
clear  and  steadfast  purpose.  Only  the  method  and  the  extent 
remain  to  be  chosen  upon  the  occasion,  if  occasion  should  indeed 
arise.  Since  it  has  unhappily  proved  impossible  to  safeguard  our 
neutral  rights  by  diplomatic  means  against  the  unwarranted  in- 
fringements they  are  suffering  at  the  hands  of  Germany,  there 
may  be  no  recourse  but  to  armed  neutrality,  which  we  shall  know 
how  to  maintain  and  for  which  there  is  abundant  American  prec- 
edent. 

In  view  of  the  statements  contained  in  the  President's  address  setting 
forth  the  difficulties  of  the  Government  of  the  United  States  concern- 
ing its  maritime  commerce,  it  has  been  thought  both  interesting  and 
timely  to  collect  and  to  publish  the  accompanying  documents  relating 
to  the  maritime  controversy  with  France  during  the  presidency  of 
John  Adams. 

The  present  volume,  which  is  issued  as  a  contribution  to  American 

precedent,    contains,    in    Part    I,    pertinent    extracts    from    President 

Adams'  messages,  the  respective  replies  of  the  Senate  and  the  House, 

the  laws  enacted  by  Congress  to  meet  the  situation,  and  the  proclama- 

$    tions    issued   by    the    President.      Part   II    continues   the    subject   by 

bringing  together  opinions  of  the  attorneys  general  and  decisions  of 

^  the  Supreme  Court  of  the  United  States  and  of  the  Court  of  Claims 

z  lS  regarding  the  origin,  nature,  extent  and  legal  effect  of  the  hostilities 

^"  _,  between  the  United  States  and  France  at  the  close  of  the  eighteenth 

g  ^"^  century.    Part  III  is  an  Appendix  which  contains  the  Treaties  of  Alli- 

£i  f.':    ance  and  of  Amity  and  Commerce  of  1778,  the  consular  convention  of 

it;  f    1788  and  the  Convention  of  1800  terminating  the  differences  between 

2  1^'   the  two  Powers.     These  treaties  are  in  the  English  and  French  lan- 

^   -    guages  in  parallel  columns. 

^  c  By  way  of  introduction,  there  is  prefixed  an  extract  from  the 
learned  note  of  J.  C.  Bancroft  Davis'  Treaties  and  Conventions  be- 
tween the  United  States  and  other  Powers,  which  gives  in  summary 
form  the  history  of  the  controversy. 

James  Brown  Scott, 
Director  of  the  Division  of  International  Lazv. 

Washington,  D.  C, 
February  28,  1917. 


Contents 

PAGE 

Prefatory  Note  iii 

List  of  Authorities vii 


Historical  Introduction — An  extract  from  J.  C.  Bancroft   Davis's  notes 
to  Treaties  and  Conventions  between  the  United  States  of  America  and 

other  Powers  1 

Part  I — State  Papers  Relating  to  the  Controversy  over  Neutral  Rights 

Between  the  United   States  and  France,   1797-1800 
Extracts    from    Messages    of    President    Adams,    and    Replies    of    the 
Senate  and  House: 

Special  Session  Message,  May  16,  1797 25 

Address  of  the  Senate,  May  23,  1797 31 

Reply  of  the  President,   May  24,  1797 34 

Address  of  the  House  of  Representatives,  June  2,  1797 35 

Reply  of  the  President,  June  3,   1797 37 

First  Annual  Address,  November  22,  1797 " 38 

Address  of  the  Senate,  November  27,  1797 39 

Reply  of  the  President,  November  28,  1797 41 

Address  of  the  House  of  Representatives,  November  28,  1797 41 

Reply  of  the  President,  November  29,  1797 42 

Second  Annual  Address,  ■  December  8,  1798 43 

Address  of  the  Senate,  December  11,  1798 45 

Reply  of  the  President,  December  12,  1798 46 

Address  of  the  House  of  Representatives,  December  13,  1798 47 

Reply  of  the  President,  December  ■  14,  1798 49 

Third  Annual  Address,  December  3,  1799 50 

Address  of  the  Senate,  December  9,  1799 51 

Address  of  the  House  of  Representatives,  December  9,  1799 51 

Reply  of  the  President,  December  10,  1799 53 

Fourth  Annual  Address,  November  22,  1800 53 

Address  of  the  House  of  Representatives,  November  26,  1800 54 

Reply  of  the  President,  November  27,  1800 55 

Acts  of  Congress  : 

An  Act  more  effectually  to  protect  the  Commerce  and  Coasts  of  the 

United  States,  May  28,   1798 56 

An    Act   to    suspend    the    commercial    intercourse    between    the   United 

States  and  France,  and  the  dependencies  thereof,  June  13,  1798 56 

An  Act  to  authorize  the  defence  of  the  Merchant  Vessels  of  the  United 

States  against  French  depredations,  June  25,  1798 59 

An  Act  in  addition  to  the  act  more  effectually  to  protect  the  Commerce 

and  Coasts  of  the  United  States,  June  28,  1798 61 

An  Act  respecting  Alien  Enemies,  July  6,  1798 63 

An  Act   to  declare  the  treaties  heretofore  concluded   with  France,   no 

longer  obligatory  on  the  United  States,  July  7,  1798 65 

An  Act  further  to  protect  the  Commerce  of  the  United  States,  Julv  9, 

1798 65 

An  Act  further   to    suspend  the   Commercial   Intercourse  between   the 

United  States  and  France,  and  the  dependencies  thereof,  February  9, 

1799    68 


vi  CONTENTS 

PAGE 

An  Act  for  the  Government  of  the  Navy  of  the  United  States,  March 
2,  1799 72 

An  Act  further  to  suspend  the  commercial  intercourse  between  the 
United  States  and  France,  and  the  dependencies  thereof,  February 
27,  1800   84 

An  x\ct  providing  for  Salvage  cases  of  Recapture,  March  3,  1800 89 

An  Act  to  continue  in  force  the  act  intituled  "An  act  to  authorize  the  de- 
fence of  the  merchant  vessels  of  the  United  States  against  French 
depredations,"  April  22,  1800 92 

An  Act  to  provide  for  the  ascertainment  of  claims  of  American  citizens 
for  spoliations  committed  by  the  French  prior  to  the  thirty-first  day 
of  July,  eighteen  hundred  and  one,  January  20,  1885 92 

Proclamations  : 

Proclamation  of  June  26,  1799 95 

Proclamation  of  May  9,  1800 96 

Proclamation  of  September  6,   1800 97 


Part  II — Opinions  of  the  Attorneys   General  and  Judgments  of  the 
Supreme  Court  and  Court  of  Claims  of  the  United  States. 

Opinions  of  the  Attorneys  General  of  the  United  States  : 

Opinion  of  August  21,  1798,  on  Treason 99 

Opinion  of  September  20,  1798,  on  the  Disposition  of  a  Prize  Ship  and 

Crew    100 

Judgments  of  the  Supreme  Court  of  the  United  States  : 

Talbot  V.  Seeman  {The  Amelia),  4  Dallas,  34 102 

Bas  V.  Tingy  (The  Eliza),  4  Dallas,  Z7 104 

Talbot  V.  Seeman  {The  Amelia),  1  Cranch,  1 116 

United  States  v.  Schooner  Peggy,  1  Cranch,  103 152 

Murray  v.  Schooner  Channiiig  Betsy,  2  Cranch,  64 158 

Little  V.  Barreme  {The  Flying  Fish),  2  Cranch,  170 206 

Hallet  &  Bowne  v.  Jenks,  3  Cranch,  210 214 

Sands  v.  Knox,  3  Cranch,  499 222 

Judgments  of  the  Court  of  Claims  of  the  United  States: 

Gray  v.  United  States,  21  C.  Cls.  340 227 

Gushing  V.  United  States,  22  C.  Cls.  1 293 

Hooper  v.  United  States,  22  C.  Cls.  408 350 

The  Ship  Coneord,  35  C.  Cls.  432 405 

The  Ship  Rose,  36  C.  Cls.  290 411 

The  Schooner  Jane,  37  C.  Cls.  24 424 

The  Ship  James  and  William..  37  C.  Cls.  303 433 


Appendix 

Treaties  between  the  United  States  and  France  : 

Treaty  of  Amity  and  Commerce,  February  6,  1//8 441 

Treaty  of  Alliance,  February  6,   1778 466 

Consular   Convention,   November   14,   1788 473 

Convention  of  Peace,  Commerce  and  Navigation,  September  30,  1800...  487 


List  of  Authorities 

American  State  Papers,  Foreign  Relations.  Documents,  Legislative  and  Execu- 
tive, of  the  Congress  of  the  United  States,  1789-1815.  6  vols.,  Washington, 
1832-1859.     (Cited  F.  R.  F.) 

Annals  of  the  Congress  of  the  United  States.  First  to  Eighteenth  Congress, 
1789-1824.    42  vols.,  Washington,  1834-1856.  (Cited  Annals.) 

The  Diplomatic  Correspondence  of  the  United  States  of  America,  from  the  sign- 
ing of  the  Definitive  Treaty  of  Peace,  loth  September,  1783,  to  the  adoption 
of  the  Constitution,  March  4,  1789.  3  vols.,  Washington,  1837.  (Cited  D.  C. 
1783-89.) 

Garden,  Comte  de.  Histoire  Generate  des  Traites  de  Paix  et  autres  transactions 
principales  entre  toutes  les  Puissances  de  I'Europe  depuis  la  Paix  de  West- 
phalie.    15  vols.,  Paris.     (Cited  Garden,  Traites  de  Paix.) 

Official  Opinions  of  the  Attorneys  General  of  the  United  States.  Washington, 
Government  Printing  Office.    (Cited  Op.  At.  Gen.) 

Pitkin,  Timothy.  A  Political  and  Civil  History  of  the  United  States,  1763-1797. 
2  vols..  New  Haven,  1828.     (Cited  Pitkin's  Political  History.) 

Redacteur,  No.  382,  January  1,  1797. 

Register  of  Debates  in  Congress.  14  vols.,  Washington,  1825-1837.  (Cited  De- 
bates.) 

Richardson,  James  D.  A  Compilation  of  the  Messages  and  Papers  of  the  Presi- 
dents, 1789-1897.  10  vols.,  Washington,  1896-1899.  (Cited  Richardson, 
Messages.) 

Senate  Documents.     (Cited  S.  Doc.) 
Senate  Reports.     (Cited  S.  R.) 

The  Statutes  at  Large  of  the  United  States  of  America.  Washington,  Govern- 
ment Printing  Office.     (Cited  St.  at  L. ;  Stat.  L.) 

Treaties  and  Conventions  concluded  between  the  United  States  of  America  and 

other  Powers  since  July  4,  1776.     Washington,  Government  Printing  Office, 

1889.    (Cited  Treaties  and  Conventions,  1889.) 
The  Writings  of  George  Washington.    Jared  Sparks.    12  vols.,  New  York,  1847- 

1848.     (Cited  Washington's  Writings;  Washington's  Works.) 
The   Writings  of  Thomas  Jefferson.     Edited  by  H.   A.   Washington.     9  vols., 

Washington.  1853-1854.     (Cited  Jeflferson's  Works.) 

Note. — Some  of  the  above  citations  are  not  now  in  general  use,  but  as  they  are 
reproductions  from  an  older  publication,  it  has  not  been  deemed  wise  to  change 
them  to  conform  to  modern  practice. 


STATE  PAPERS  AND  JUDICIAL  DECISIONS  RELATING  TO 
THE  CONTROVERSY  OVER  NEUTRAL  RIGHTS  BE- 
TWEEN THE  UNITED  STATES  AND  FRANCE,  1797-1800 


Historical  Introduction 

<5n  the  25th  of  January,  1782,  the  Continental  Congress  passed  an 
act  authorizing  and  directing  Dr.  Franklin  to  conclude  a  Consular 
Convention  with  France  on  the  basis  of  a  scheme  which  was  sub- 
mitted to  that  body.  Dr.  Franklin  concluded  a  very  different  conven- 
tion, which  Jay,  the  Secretary  for  Foreign  Affairs,  and  Congress  did 
not  approve.^  Franklin  having  returned  to  America,  the  negotiations 
then  fell  upon  Jefferson,  who  concluded  the  Convention  of  1788.  This 
was  laid  before  the  Senate  by  President  Washington  on  the  11th  of 
June,  1789. 

On  the  21st  of  July  it  was  ordered  that  the  Secretary  of  Foreign 
Affairs  attend  the  Senate  to-morrow  and  bring  with  him  such  papers 
as  are  requisite  to  give  full  information  relative  to  the  Consular  Con- 
vention between  France  and  the  United  States.^  Jay  was  the  Secretary 
thus  "ordered."  He  was  holding  over,  as  the  new  Department  was  not 
then  created.  The  Bill  to  establish  a  Department  of  Foreign  Affairs 
had  received  the  assent  of  both  Houses  the  previous  day,*  but  had  not 
yet  been  approved  by  the  President.^  Jay  appeared,  as  directed,  and 
made  the  necessary  explanations.®  The  Senate  then  Resolved  that  the 
Secretary  of  Foreign  Affairs  under  the  former  Congress  be  requested 
to  peruse  the  said  Convention,  and  to  give  his  opinion  how  far  he  con- 
ceives the  faith  of  the  United  States  to  be  engaged,  either  bv  former 
agreed  stipulations  or  negotiations  entered  into  by  our  Minister  at  the 
Court  of  Versailles,  to  ratify  in  its  present  sense  or  form  the  Conven- 


1  This  introduction  has  been  taken  from  pages  983  to  1002  of  J.  C.  Bancroft 
Davis's  notes  to  the  revised  edition  (1873)  of  Treaties  and  Conventions  concluded 
between  the  United  States  of  America  and  other  Potvers  since  July  4,  I//6. 

2  1  D.  C,  1783-89,  232.  •'•  lb.,  52. 
'Annals  1st  Sess.  1st  Cong.  52.  «  lb. 

*  lb.,  685. 


2  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

tion  now  referred  to  the  Senate.^  Jay  made  a  written  report  on  the 
27th  of  July  that  in  his  judgment  the  United  States  ought  to  ratify 
the  Convention ;-  and  the  Senate  gave  its  unanimous  consent.^  The 
Statute  to  carry  the  Convention  into  effect  was  passed  the  14th  of 
April,   1792.* 

Three  articles  in  the  treaties  with  France  concluded  before  the  Con- 
stitution became  the  cause  of  difference  between  the  two  Powers : 

1.  Article  XI  of  the  Treaty  of  Alliance,  by  which  the  United  States, 
for  a  reciprocal  consideration,  agreed  to  guarantee  to  the  King  of 
France  his  possessions  in  America,  as  well  present  as  those  which 
might  be  acquired  by  the  Treaty  of  Peace. 

2.  Article  XVII  of  the  Treaty  of  Amity  and  Commerce,  providing 
that  each  party  might  take  into  the  ports  of  the  other  its  prizes  in 
time  of  war,  and  that  they  should  be  permitted  to  depart  without 
molestation ;  and  that  neither  should  give  shelter  or  refuge  to  vessels 
which  had  made  prizes  of  the  other  unless  forced  in  by  stress  of 
weather,  in  which  case  they  should  be  required  to  depart  as  soon  as 
possible. 

3.  Article  XXII  of  the  same  Treaty,  that  foreign  privateers,  the 
enemies  of  one  party,  should  not  be  allowed  in  the  ports  of  the  other 
to  fit  their  ships  or  to  exchange  or  sell  their  captures,  or  to  purchase 
provisions  except  in  sufficient  quantities  to  take  them  to  the  next  port 
of  their  own  State. 

Jefferson,  who  was  the  Minister  of  the  United  States  at  the  Court  of 
Versailles  when  the  Constitution  went  into  operation,  was  appointed 
Secretary  of  State  by  President  Washington  on  the  26th  of  September, 
1789.  He  accepted  the  appointment  and  presented  Short  to  Neckar 
as  charge  d'affaires  of  the  United  States.^ 

Gouverneur  Morris,  of  New  York,  who  had  been  in  Europe  from 
the  dawn  of  the  French  revolution,  and  had  been  in  regular  friendly 
correspondence  with  Washington,^  was  appointed  Minister  to  France 
on  the  12th  of  January,  1792.  At  the  time  of  the  appointment  Wash- 
ington wrote  him  a  friendly  and  admonitory  letter :  "The  official  com- 
munications from  the  Secretary  of  State  accompanying  this  letter  will 
convey  to  you  the  evidence  of  my  nomination  and  appointment  of  you 
to  be  Minister  Plenipotentiary  of  the  United  States  at  the  Court  of 


1  Annals  1st  Sess.  1st  Cong.,  52.  *  1  St.  at  L.,  254. 

^Ib..  54.  53  Jefferson's  Works,  119. 

^  lb.  6  1  F.  R.  R,  379-399. 


HISTORICAL  INTRODUCTION  3 

France;  and  my  assurance  that  both  were  made  with  all  my  heart  will, 
I  am  persuaded,  satisfy  you  as  to  that  fact.  I  wish  I  could  add  that 
the  advice  and  consent  flowed  from  a  similar  source.  *  *  *  Not  to 
go  further  into  detail  I  will  place  the  ideas  of  your  political  adversaries 
in  the  light  in  which  their  arguments  have  presented  them  to  me, 
namely,  that  the  promptitude  with  which  your  lively  and  brilliant 
imagination  is  displayed  allows  too  little  time  for  deliberation  and 
correction,  and  is  the  primary  cause  of  those  sallies  which  too  often 
offend,  and  of  that  ridicule  of  character  which  begets  enmity  not  easy 
to  be  forgotten,  but  which  might  easily  be  avoided  if  it  was  under  the 
control  of  more  caution  and  prudence.  In  a  word,  that  it  is  indispen- 
sably necessary  that  more  circumspection  should  be  observed  by  our 
representatives  abroad  than  they  conceive  you  are  inclined  to  adopt. 
In  this  statement  you  have  the  pi'os  and  cons.  By  reciting  them  I  give 
you  a  proof  of  my  friendship  if  I  give  you  none  of  my  policy  or 
judgment."^ 

Morris  entered  upon  the  duties  of  his  office  with  these  wise  cautions 
in  his  hand,  but  he  did  not  succeed  in  gaining  the  good-will  of  a  suc- 
cession of  governments  with  which  he  had  little  sympathy  i^  for  he 
writes  Jefferson  on  the  13th  of  February,  1793 :  "Some  of  the  leaders 
here  who  are  in  the  diplomatic  committee  hate  me  cordially,  though  it 
would  puzzle  them  to  say  why."^ 

When  Morris  was  appointed  Minister,  the  commercial  relations 
between  the  two  countries  were  satisfactory  to  neither.  Exceptional 
favors  to  the  commerce  of  the  United  States,  granted  by  royal  decree 
in  1787  and  1788,'*  had  been  withdrawn,  and  a  jealousy  was  expressed 
in  France  in  consequence  of  the  Act  of  Congress  putting  British  and 
French  commerce  on  the  same  basis  in  American  ports. ^  No  excep- 
tional advantages  had  come  to  France  from  the  war  of  the  revolution, 
and  American  commerce  had  reverted  to  its  old  British  channels. 

Jefferson  greatly  desired  to  conclude  a  convention  with  France  which 
should  restore  the  favors  which  American  commerce  had  lost,  and 
bring  the  two  countries  into  closer  connection.  On  the  10th  of  March, 
1792,  he  instructs  Morris:  "We  had  expected,  ere  this,  that  in  conse- 
quence of  the  recommendation  of  their  predecessors,  some  overtures 
would  have  been  made  to  us  on  the  subject  of  a  Treaty  of  commerce. 


1  10  Washington's  Writings,  216-18.      *  lb.,  113,  116. 

2  1  F.  R.  F.  412.  ^  See  Short's  correspondence,  lb.,  120. 

3  lb..  350. 


4  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

*  Perhaps  they  expect  that  we  should  declare  our  readiness  to  meet 
on  the  ground  of  Treaty.  If  they  do,  we  have  no  hesitation  to  declare 
it."^  Again,  on  the  28th  of  April,  he  writes:  "It  will  be  impossible 
to  defer  longer  than  the  next  session  of  Congress  some  counter  regu- 
lations for  the  protection  of  our  navigation  and  commerce.  I  must 
entreat  you,  therefore,  to  avail  yourself  of  every  occasion  of  friendly 
remonstrance  on  this  subject.  If  they  wish  an  equal  and  cordial  treaty 
with  us,  we  are  ready  to  enter  into  it.  We  would  wish  that  this  could 
be  the  scene  of  negotiation."^  Again,  on  the  16th  of  June,  he  writes: 
"That  treaty  may  be  long  on  the  anvil ;  in  the  mean  time  we  cannot 
consent  to  the  late  innovations  without  taking  measures  to  do  justice 
to  our  own  navigation."^ 

The  great  revolution  of  the  10th  of  August,  and  the  imprisonment 
of  the  King,  were  duly  reported  by  Morris  ;*  and  Jefferson  replied  on 
the  7th  of  November:  "It  accords  with  our  principles  to  acknowledge 
any  government  to  be  rightful  wlxich  is  formed  by  the  will  of  the 
nation  substantially  declared.  *  *  There  are  some  matters  which 
I  conceive  might  be  transacted  with  a  government  de  facto;  such,  for 
instance,  as  the  reforming  the  unfriendly  restrictions  on  our  commerce 
and  navigation."^ 

To  these  instructions,  Morris  answered  on  the  13th  of  February, 
1793,  three  weeks  after  the  execution  of  the  King,  and  a  fortnight 
after  the  declaration  of  war  against  England:  "You  had  *  in- 
structed me  to  endeavor  to  transfer  the  negotiation  for  a  new  treaty 
to  America,  and  if  the  revolution  of  the  10th  of  August  had  not  taken 
place,  *  I  should,  perhaps,  have  obtained  what  you  wished.  *  *  * 
The  thing  you  wished  for  is  done,  and  vou  can  treat  in  iVmerica  if 
you  please."®  In  the  same  dispatch,  Morris  spoke  of  the  "sending  out 
of  M.  Genet,  without  mentioning  to  me  a  syllable  either  of  his  mission 
or  his  errand,"  and  said  that  "the  pompousness  of  this  embassy  could 
not  but  excite  the  attention  of  England."^ 

On  the  7th  of  March,  Morris  wrote  to  Jefferson  that  "Genet  took 
out  with  him  three  hundred  blank  commissions,  which  he  is  to  dis- 
tribute to  such  as  will  fit  out  cruisers  in  our  ports  to  prey  on  the 


1  3  Jefferson's  Works,  338-9.  ^  3  Jefferson's  Works,  489. 

2  lb.,  356.  •>  1  F.  R.  F.,  350. 

3  lb.,  449.  7  ih. 
*  1  F.  R.  F.,  333. 


HISTORICAL  INTRODUCTION  5 

British  commerce,"  and  that  he  had  already  mentioned  the  fact  to 
Pinckney,  and  had  desired  him  to  transmit  it.^ 

The  new  condition  of  affairs  caused  by  the  war  induced  the  Presi- 
dent to  submit  a  series  of  questions  to  the  members  of  his  cabinet  for 
their  consideration  and  reply.^  It  would  seem  from  a  passage  of  Mr. 
Jefferson's  Ana  that  the  second  of  these  questions — "Shall  a  Minister 
from  France  be  received?"  was  suggested  by  the  Secretary  of  State.' 
An  accovmt  of  the  meeting  of  the  cabinet  at  which  these  questions 
were  discussed  will  be  found  in  vol.  9  Jefferson's  Works,  page  142. 

The  first  two  questions  were  unanimously  answered  in  the  affirma- 
tive— that  a  proclamation  for  the  purpose  of  preventing  citizens  of  the 
United  States  from  interfering  in  the  war  between  France  and  Great 
Britain  should  issue,  and  that  Genet  should  be  received ;  but  by  a  com- 
promise, the  term  "neutrality"  was  omitted  from  the  text  of  the  proc- 
lamation.* 

When  Genet  landed  in  Charleston,  on  the  8th  of  April,  1793 — even 
when  he  arrived  in  Philadelphia — it  may  be  believed  that  Washington 
contemplated  the  probability  of  closer  relations  with  France,  and  the 
possibility  of  a  war  with  Great  Britain.  The  relations  with  the  latter 
Power  were  in  a  critical  condition.  British  garrisons  were  occupying 
commanding  positions  on  our  lake  frontiers,  within  the  territory  of 
the  United  States,  in  violation  of  the  Treaty  of  1783;  and  an  Indian 
quarrel  was  on  the  President's  hands,  fomented,  as  he  thought,  by 
British  intrigue.^ 

The  policy  which  Washington  favored,  denied  France  nothing  that 
she  could  justly  demand  under  the  Treaty,  except  the  possible  enforce- 
ment of  the  provision  of  guarantee ;  and  that  provision  was  waived 
by  Genet  in  his  first  interview  with  Jefferson.  "We  know,"  he  said, 
"that  under  present  circumstances  we  have  a  right  to  call  upon  you  for 
the  guarantee  of  our  islands.    But  we  do  not  desire  it."^ 

On  the  other  hand,  it  offered  to  Great  Britain  neutrality  only,  with- 
out a  right  of  asylum  for  prizes,  this  being  conferred  exclusively  by 
Treaty  upon  France ;  and  it  demanded  the  relinquishment  of  the  Forts 
on  the  lakes  and  the  abandonment  of  impressment. 


1  F.  R.  F.,  354.  3  9  Jefferson's  Works,  140. 

2  10  Washington's  Works,  337,  533.       *  3  Jefferson's  Works,  591. 

^  10  Washington's  Works,  239.     See  also  Morris's  opinion,  1  F.  R.  F.,  412,  and 
Randolpli's,  lb.,  678. 

"  3  Jefferson's  Works,  563.' 


6  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

It  is  not  likely  that  the  purposes  of  Genet's  mission  were  fully  com- 
prehended by  the  American  Government.  By  a  Treaty  in  1762  (first 
made  public  in  1836)/  France  ceded  Louisiana  to  Spain.  Genet  was 
instructed  to  sound  the  disposition  of  the  inhabitants  of  Louisiana 
towards  the  French  Republic,  and  to  omit  no  opportunity  to  profit  by 
it  should  circumstances  seem  favorable.  He  was  also  to  direct  particu- 
lar attention  to  the  designs  of  the  Americans  upon  the  Mississippi.^ 

In  one  of  his  letters  Genet  says  of  himself,  "I  have  been  seven  years 
a  head  of  the  bureau  at  Versailles,  under  the  direction  of  Vergennes ; 
I  have  passed  one  year  at  London,  two  at  Vienna,  one  at  Berlin,  and 
five  in  Russia."^  His  dealings  with  the  United  States  showed  that  he 
had  gathered  little  wisdom  from  such  varied  experience. 

Before  he  left  Charleston,  which  at  that  time  had  few  regular  means 
of  communication  with  Philadelphia,  he  had  armed  and  commissioned 
several  vessels,  and  these  vessels,  dispatched  to  sea,  had  made  many 
prizes.*  On  his  arrival  at  Philadelphia,  Jefferson  met  him  with  com- 
plaints; but  he  justified  his  course  at  Charleston  and  denounced  an 
interference  with  it  as  a  "State  Inquisition";^  and,  admitting  what  was 
complained  of,  he  contended  that  he  had  not  exceeded  the  rights  con- 
ferred upon  his  country  by  the  Treaty  of  1778. 

The  Secretary  of  State  disputed  his  reasoning;  upon  which  he 
retorted:  "I  wish,  Sir,  that  the  Federal  Government  should  observe, 
as  far  as  in  their  power,  the  public  engagements  contracted  by  both 
nations ;  and  that  by  this  generous  and  prudent  conduct,  they  will  give 
at  least  to  the  world  the  example  of  a  true  neutrality,  which  does  not 
consist  in  the  cowardly  abandonment  of  their  friends,  in  the  moment 
when  danger  menaces  them,  but  in  adhering  strictly,  if  they  can  do 
no  better,  to  the  obligations  they  have  contracted  with  them."^  He 
continued  to  claim  and  exercise  the  right  of  using  the  ports  of  the 
United  States  as  a  base  for  warlike  operations,  and,  as  the  discussions 
went  on,  his  expressions  became  stronger,  and  more  contemptuous 
toward  the  President  and  the  Government  of  the  United  States. 

His  instructions  contemplated  a  political  alliance  between  the  two 
republics.'^  This  was  never  proposed.  He  did  propose,  however,  the 
re-arrangement  of  the  debt  due  to  France  on  the  basis  of  the  payment 


1  6  Garden,  Traites  de  Paix,  266.  ^  lb. 

2  8  Garden,  Traites  de  Paix,  40-41.  «  1  F.  R.  P.,  151. 

3  1  F.  R.  P.,  183.  7  ib.^  708. 
*Ib.,  150. 


HISTORICAL  INTRODUCTION  7 

of  a  larger  installment  than  was  required  by  the  contract,  to  be  ex- 
pended in  the  purchase  of  provisions  in  the  United  States: — and  the 
conclusion  of  a  new  commercial  Treaty.  Jefferson  declined  the  former, 
and  as  to  the  latter  said  that  the  participation  in  matters  of  Treaty 
given  by  the  Constitution  to  the  Senate  would  delay  any  definite  an- 
swer.^ 

At  length  his  conduct  became  so  violent  and  indecent  (Garden 
speaks  of  Washington  as  "personnellement  insulte  dans  les  actes  diplo- 
matiques  de  M.  Genet" )^  that  Jefferson,  on  the  15th  of  August,  1793, 
instructed  Morris  to  demand  his  recall.  One  of  the  first  acts  of  his 
successor  was  to  demand  his  arrest  for  punishment,  which  was  refused 
by  the  Government  of  the  United  States  "upon  reasons  of  law  and 
magnanimity."^ 

It  was  several  months  before  the  request  for  his  recall  could  be 
complied  with.  Meanwhile,  the  United  States  being  without  a  navy, 
prizes  continued  to  be  brought  into  their  ports,  and  French  Consuls 
attempted  to  hold  prize  courts  within  their  jurisdiction.*  Genet  also 
applied  himself  diligently  at  this  time  to  the  greater  scheme  respecting 
the  Louisianas,  which  Garden  regards  as  the  main  object  of  his  mission. 
An  armed  expedition  was  organized  in  South  Carolina  and  Georgia 
for  an  attack  upon  Florida.^  Garden  says  that  he  had  assurances  that 
all  Louisiana  desired  to  return  under  the  jurisdiction  of  France,  and  he 
made  serious  preparations  for  conquering  it.  He  prepared  a  co-opera- 
tion of  naval  forces,  which  were  to  appear  off  the  coast  of  Florida. 
The  principal  land  forces  were  to  embark  from  Kentucky,  and,  descend- 
ing the  Ohio  and  the  Mississippi,  were  to  fall  unexpectedly  upon  New 
Orleans."*'  The  action  of  the  Government  and  the  recall  of  Genet  put 
a  stop  to  these  expeditions  against  Spam,  although  Jefferson  at  that 
time  thought  a  war  with  Spain  inevitable.'^ 

In  retaliation  the  Executive  Provisory  Council  of  the  French  Re- 
public demanded  the  recall  of  Morris.^  In  communicating  the  fact  to 
him  Secretary  Randolph  said :  "You  have  been  assailed,  however, 
from  another  quarter.     Nothing  has  ever  been  said  to  any  officer  of 


1 1  F.  R.  F.,  568. 

2  8  Garden,  Traites  de  Paix,  43,  "personally  insulted  by  the  acts  of  Mr.  Genet." 

3  1  F.  R.  F.,  709.  ■'  lb.,  309,  426. 

4  lb.,  147. 

*■'  8  Garden,  Traites  de  Paix,  42.     More  detailed  account  of  this  affair  will  be 
found  in  2  Pitkin's  Political  History,  379. 

7  3  Jefferson's  Works,  591.  M  F.  R.  F.,  463. 


8  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

our  Government  by  the  Ministers  of  France  which  required  attention 
until  the  9th  day  of  April  last,  when  Mr.  Fauchet  communicated  to 
me  a  part  of  his  instructions,  indirectly  but  plainly  making  a  wish  for 
your  recall.  In  a  few  days  afterwards  a  letter  was  received  from  the 
Executive  Provisory  Council,  expressive  of  the  same  wish.  Mr.  Fau- 
chet was  answered  by  me,  under  the  direction  of  the  President,  as  I 
am  sure  your  good  sense  will  think  inevitable,  that  the  act  of  reci- 
procity demanded  should  be  performed."^ 

Washington  wrote  Morris,  when  his  successor  went  out:  "I  have 
so  far  departed  from  my  determination  as  to  be  seated  in  order  to 
assure  you  that  my  confidence  in,  and  friendship  and  regard  for  you, 
remain  undiminished  *  *  and  it  will  be  nothing  new  to  assure  you 
that  I  am  always  and  very  sincerely,  yours,  affectionately  i"^  and  when 
his  correspondence  was  called  for  by  the  Senate,  Washington  himself, 
in  association  with  Hamilton  and  Randolph,  went  over  it  (and  it  was 
voluminous)  in  order  that  nothing  might  be  communicated  which 
would  put  in  peril  those  who  had  given  him  information,  or  which 
would  re-act  upon  him  in  France.^ 

When  the  war  broke  out  in  February,  1793,  Morris  wrote  Jefferson: 
"As  to  the  conduct  of  the  war,  I  believe  it  to  be  on  the  part  of  the 
enemy  as  follows :  first,  the  maritime  powers  will  try  to  cut  off  all 
supplies  of  provisions,  and  take  France  by  famine ;  that  is  to  say, 
excite  revolt  among  the  people  by  that  strong  lever.  *  *  It  is  not 
improbable  that  our  vessels  bringing  provisions  to  France  may  be  cap- 
tured and  taken  into  England."*  His  prescience  was  accurate.  Such 
instructions  were  given  to  British  men-of-war  on  the  8th  day  of  June, 
1793.  The  British  measure,  however,  was  anticipated  by  a  decree  of 
the  National  Convention  of  the  9th  of  May,  authorizing  ships  of  war 
and  privateers  to  seize  and  carry  into  the  ports  of  the  Republic  mer- 
chant-vessels which  are  wholly  or  in  part  loaded  with  provisions,  being 
neutral  property  bound  to  an  enemy's  port,  or  having  on  board  mer- 
chandise belonging  to  an  enemy.^  On  the  23d  of  the  same  month  the 
vessels  of  the  United  States  were  exempted  from  the  operation  of  this 
decree;''  but  on  the  5th  of  December,  1793,  President  Washington  sent 


1  Randolph  to  Morris,  April  29,  1794,  MS.  Dept.  of  State. 

2  1  F.  R.  F.,  409. 

3  Randolph  to  Morris,  April  29,  1794,  MS.  Dept.  of  State. 
*  1  F.  R.  F.,  350.  6  lb. 

5  lb.,  244. 


HISTORICAL  INTRODUCTION  9 

a  special  message  to  Congress,  in  which  he  said:  "The  representa- 
tive and  executive  bodies  of  France  have  manifested  generally  a 
friendly  attachment  to  this  country ;  have  given  advantages  to  our 
commerce  and  navigation,  and  have  made  overtures  for  placing  these 
advantages  on  permanent  ground;  a  decree,  however,  of  the  National 
Assembly,  subjecting  vessels  laden  with  provisions  to  be  carried  into 
their  ports,  and  making  enemies'  goods  lawful  prize  in  the  vessel  of  a 
friend,  contrary  to  our  Treaty,  though  revoked  at  one  time  as  to  the 
United  States,  has  been  since  extended  to  their  vessels  also,  and  has 
been  recently  stated  to  us."^ 

An  embargo  was  laid  upon  vessels  in  the  port  of  Bordeaux,  "some 
exceptions  in  favor  of  those  vessels  said  to  be  loaded  on  account  of  the 
republic"  being  made.^  Morris  was  promised  daily  that  the  embargo 
should  be  taken  off,  and  indemnification  be  granted  for  the  losses,^  but 
it  was  not  done,  and  "a  number  of  Americans,"  injured  by  it,  com- 
plained to  the  Minister.*  The  embargo  was  not  removed  until  the  18th 
of  November,  1794.^ 

Monroe  succeeded  Morris,  and  on  the  12th  of  February,  1795,  wrote: 
"Upon  my  arrival  here  I  found  our  affairs  *  *  in  the  worst  possible 
situation.  The  Treaty  between  the  two  Republics  was  violated.  Our 
commerce  was  harassed  in  every  quarter  and  in  every  article,  even  that 
of  tobacco  not  excepted.  *  *  Our  former  Minister  was  not  only 
without  the  confidence  of  the  government,  but  an  object  of  particular 
jealousy  and  distrust.  In  addition  to  which  it  was  suspected  that  we 
were  about  to  abandon  them  for  a  connection  with  England,  and  for 
which  purpose  principally  it  was  believed  that  Mr.  Jay  had  been  sent 
there."« 

Monroe's  and  Jay's  services  commenced  nearly  simultaneously.  Mon- 
roe's commission  was  dated  the  28th  of  May,  and  Jay's  the  19th  of 
April,  1794.  Jay's  Treaty  was  proclaimed  the  29th  of  February',  1796. 
Monroe  was  not  recalled  until  the  22d  of  the  following  August,^  but 
the  angry  correspondence  which  preceded  his  recall^  may  be  said  to 
have  been  caused  by  a  radical  difference  of  opinion  respecting  his  col- 
league's mission  to  London. 


1  1  F.  R.  R,  141.  5  lb.,  689. 

2  lb.,  401.  6  lb.,  694. 

3  lb.,  403.  7  lb.,  741. 

*  lb.,  405.  8  lb.,  658-741. 


10  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

Whatever  may  have  been  the  feeling  toward  Monroe's  predecessor, 
he  himself  was  well  received.  The  Committee  of  Public  Safety  wel- 
comed him  "with  the  most  distinguished  marks  of  affection,"  and 
offered  him  a  house,  which  offer  he  declined.^  He  remained  in  rela- 
tions of  personal  good-will  with  the  different  Governments  of  France, 
and  did  not  fail  to  urge  in  his  correspondence  with  the  Secretary  of 
State  the  policy  of  settling  the  differences  with  Great  Britain  by  an 
alliance  with  France  :^  nor  did  he  conceal  those  opinions  from  the 
Government  to  which  he  was  accredited.^  While  the  relations  between 
Great  Britain  and  the  United  States  were  balancing  themselves  in 
London  on  the  issue  of  Jay's  Treaty,  those  between  the  United  States 
and  France  were  held  in  like  suspense  in  Paris. 

Monroe  endeavored  to  obtain  from  Jay  a  knowledge  of  the  negotia- 
tions and  a  copy  of  the  Treaty.  Jay  refused  to  communicate  informa- 
tion, except  in  confidence,  and  Monroe  declined  to  receive  it  unless  he 
should  be  at  liberty  to  communicate  it  to  the  French  Government.* 
A  copy  was,  however,  officially  communicated  to  the  French  Minister 
at  Washington.^  When  the  fate  of  that  Treaty  was  ensured,  the 
directory  at  first  resolved  (and  so  informed  Monroe)  to  consider  the 
alliance  at  an  end,  but  they  gave  no  formal  notice  to  that  effect.^  In 
lieu  of  that  they  lodged  with  him,  on  the  11th  of  March,  1796,  a  sum- 
mary exposition  of  the  complaints  of  the  French  Government  against 
the  Government  of  the  United  States,  namely,  (1.)  That  the  United 
States  Courts  took  jurisdiction  over  French  Prizes,  in  violation  of  the 
Treaty  of  1778.  (2.)  That  British  men-of-war  were  admitted  into 
American  ports  in  violation  of  the  same  article.  (3.)  That  the  United 
States  had  failed  to  empower  any  one  to  enforce  consular  judgments, 
which  was  alleged  to  be  a  violation  of  the  Convention  of  1788.  (4.) 
That  the  Captain  of  the  Cassius  had  been  arrested  in  Philadelphia 
for  an  offense  committed  on  the  high  seas.  (5.)  That  an  outrage  had 
been  committed  on  the  effects  of  the  French  Minister  within  the  waters 
of  the  United  States.  (6.)  That  by  Jay's  Treaty  the  number  of  articles 
contraband  of  war,  which  a  neutral  might  not  carry,  had  been  in- 
creased above  the  list  specified  in  the  treaties  with  France,  which  was 


1 1  F.  R.  F.,  675. 

2  See,  among  others,  his  letters  in  1  F.  R.  F.  of  Nov.  20,  1794,  685 ;  Dec.  2, 
1794,  687;  Jan.  13.  1795,  691;  Feb.  12,  1795,  694;  and  March  17,  1795,  700. 

3  lb.,  700.  5  lb.,  594. 

4  lb.,  517.  691.  700.  « lb.,  730. 


HISTORICAL  INTRODUCTION  11 

a  favor  to  England.  (7.)  That  provisions  had  been  recognized  in  Jay's 
Treaty  as  an  article  contraband  of  war.^ 

On  the  2d  of  July,  1796,  the  directory  decreed  that  all  neutral  or 
allied  powers  should,  without  delay,  be  notified  that  the  flag  of  the 
French  Republic  would  treat  neutral  vessels,  either  as  to  confiscation, 
or  to  searches,  or  capture,  in  the  same  manner  as  they  shall  suffer  the 
English  to  treat  them.^  Garden  says  that  a  second  decree  relating  to 
the  same  object  was  made  on  the  16th  of  the  same  month,  and  that 
neither  decree  has  been  printed.  The  translation  of  the  first  one  is 
printed  among  the  American  documents  cited  above,  as  also  the  trans- 
lation of  a  note  transmitting  it  to  Monroe.^  Garden  refers  to  Ron- 
donneau.  Repertoire  general  de  la  Legislation  frangaise.  Vol.  II,  p. 
311,  for  the  text  of  the  second.* 

Pickering,  the  successor  of  Randolph,  noticed  the  complaints  of  the 
French  Government  in  elaborate  instructions  to  Pinckney,  Monroe's 
successor,  on  the  16th  of  January,  1797.^  His  replies  were  in  sub- 
stance, (1.)  That  the  courts  had  taken  jurisdiction  over  no  prizes, 
except  when  they  were  alleged  to  have  been  made  in  violation  of  the 
obligations  of  the  United  States  as  a  neutral,  and  that  the  cases  in 
which  interference  had  taken  place  were  few  in  number  and  insignifi- 
cant. (2.)  That  it  was  no  violation  of  the  Treaty  with  France  to 
admit  British  ships  of  war  into  American  ports,  provided  British 
privateers  and  prizes  were  excluded.  (3.)  That  there  was  no  Treaty 
obligation  upon  officers  of  the  United  States  to  enforce  French  con- 
sular judgments,  and  that  the  clause  referred  to  was  exceptional  and 
ought  not  to  be  enlarged  by  construction.  (4.)  The  facts  respect- 
ing the  Cassius  were  stated  in  order  to  show  that  no  oflfense  had 
been  committed.  (5.)  That  the  executive  had  taken  as  efficacious 
measures  as  it  could  to  obtain  satisfaction  for  the  outrage  upon  Fau- 
chet.  (6.)  That  the  United  States  would  gladly  have  put  the  defini- 
tion of  contraband  on  the  same  basis  in  its  Treaties  with  both  coun- 
tries; but  that  Great  Britain  would  not  consent,  and  an  independent 
arrangement  had  been  made  which  did  not  affect  the  other  Treat)'' 
arrangement  made  with  France.  (7.)  That  the  stipulation  as  to  pro- 
visions, without  admitting  the  principle  that  provisions  were  contra- 
band, would  tend  to  promote  adventures  in  that  article  to  France. 


1  1  F.  R.  F.,  732-3.  *6  Garden,  Traites  de  Paix,  112,  note. 

2  lb..  577.  =  1  F.  R.  F.,  559. 

3  lb.,  739. 


12  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

A  correspondence  respecting  the  same  subject  had  also  taken  place 
at  Washington,  in  which  the  same  complaints  of  the  directory  were 
repeated  and  other  complaints  were  urged. ^  To  the  latter  Pickering 
responded  thus,  in  the  same  note  in  which  he  noticed  the  complaints 
which  had  been  made  in  Paris:  (1.)  Charge. — That  the  negotiation 
at  London  had  been  "enveloped  from  its  origin  in  the  shadow  of 
mystery,  and  covered  with  the  veil  of  dissimulation."^  Reply. — "To 
whom  was  our  Government  bound  to  unveil  it?  To  France  or  to  her 
Minister?  *  Did  we  stipulate  to  submit  the  exercise  of  our  sover- 
eignty *  *  to  the  direction  of  the  Government  of  France?  Let 
the  Treaty  itself  furnish  an  answer."^  (2.)  Charge. — That  the  Gov- 
ernment of  the  United  States  had  made  an  insidious  proclamation  of 
neutrality.  Reply. — That  "this  proclamation  received  the  pointed  ap- 
probation of  Congress,"  and  "of  the  great  body  of  the  citizens  of  the 
United  States."  (3.)  Charge. — That  the  United  States  "suffered  Eng- 
land, by  insulting  its  neutrality,  to  interrupt  its  commerce  with  France." 
Reply. — That  a  satisfaction  had  been  demanded  and  obtained  in  a 
peaceable  manner — by  Treaty,  and  not  by  war.  (4.)  Charge. — That 
they  "allowed  the  French  colonies  to  be  declared  in  a  state  of  block- 
ade." Reply. — That  the  United  States,  as  a  neutral,  could  only  ques- 
tion the  sufficiency  of  a  blockade,  and  that  they  would  do  so  when 
facts  should  warrant  it.  (5.)  Charge. — That  the  Ubited  States  eluded 
advances  for  renewing  the  Treaties  of  commerce.  Reply. — That  Genet 
was  the  first  French  Minister  who  had  been  empowered  to  treat  on 
those  subjects,  and  the  reasons  for  not  treating  with  him  were  well 
known ;  that  his  successor,  Fauchet,  had  not  been  so  empowered,  and 
that  the  United  States  had  always  been  ready  to  negotiate  with  Adet, 
and  all  obstacles  had  come  from  him  since  the  ratification  of  Jay's 
Treaty.  (6.)  Charge. — That  the  United  States  were  guilty  of  ingrati- 
tude towards  France.  Reply. — That  the  United  States,  appreciating 
their  obligations  to  France,  had  done  something  themselves  towards 
the  achievement  of  their  independence;  that,  "of  all  the  loans  received 
from  France  in  the  American  war,  amounting  nearly  to  53,000,000 
livres,  the  United  States  under  their  late  Government  had  been  enabled 
to  pay  but  2,500,000  livres ;  that  the  present  Government,  after  paying 
up  the  arrearages  and  installments  mentioned  by  Mr.  Jefferson,  had 
been  continually  anticipating  the  subsequent  installments  until,  in  the 
year  1795,  the  whole  of  our  debt  to  France  was  discharged  by  the 


1 1  F.  R.  F.,  579.  3  lb.,  561. 

2  lb.,  581. 


HISTORICAL  INTRODUCTION  13 

payment  of  11,500,000  livres,  no  part  of  which  would  have  become  due 
until  September  2,  1796,  and  then  only  1,500,000,  the  residue  at  subse- 
quent periods,  the  last  not  until  1802."  (7.)  Charge.— That  English 
vessels  were  impressing  American  seamen.  Reply. — That  this  con- 
cerned the  Government  of  the  United  States  only;  and  that  as  an 
independent  nation  they  are  not  obliged  to  account  to  any  other  power 
respecting  the  measures  which  they  judge  proper  to  take  in  order  to 
protect  their  own  citizens.  Other  less  important  points  were  dis- 
cussed, as  will  be  seen  by  referring  to  the  correspondence. 

The  course  of  the  French  was  giving  rise  to  many  claims — for  spolia- 
tions and  maltreatment  of  vessels  at  sea,  for  losses  by  the  embargo 
at  Bordeaux,  for  the  non-payment  of  drafts  drawn  by  the  colonial 
administrations,  for  the  seizure  of  cargoes  of  vessels,  for  non-per- 
formance of  contracts  by  government  agents,  for  condemnation  of 
vessels  and  their  cargoes  in  violation  of  the  provisions  of  the  Treaties 
of  1778,  and  for  captures  under  the  decree  of  May  9,  1793.  Skipwith, 
the  Consul-General  of  the  United  States  in  France,  was  directed  to 
examine  into  and  report  upon  these  claims;  his  report  was  made  on 
the  20th  November,  1795.^ 

On  the  9th  of  September,  1796,  Charles  Cotesworth  Pinckney  was 
sent  out  to  replace  Monroe,  with  a  letter  from  the  Secretary  of  State, 
saying:  "The  claims  of  the  American  merchants  on  the  French  Re- 
public are  of  great  extent,  and  they  are  waiting  the  issue  of  them, 
through  the  public  agents,  with  much  impatience.  Mr.  Pinckney  is 
particularly  charged  to  look  into  this  business,  in  which  the  serious 
interests,  and,  in  some  cases,  nearly  the  whole  fortunes  of  our  citi- 
zens are  involved."^  But  the  directory,  early  in  October,  1793,  recalled 
their  Minister  from  the  United  States.^  Before  Pinckney  could  arrive 
in  France,  they,  "in  order  to  strike  a  mortal  blow,  at  the  same  moment, 
to  British  industry  and  the  profitable  trade  of  Americans  in  France, 
promulgated  the  famous  law  of  the  10th  Brumaire,  year  5  (31st  Oc- 
tober, 1796),  whereby  the  importation  of  manufactured  articles, 
whether  of  English  make  or  of  English  commerce,  was  prohibited  both 
by  land  and  sea  throughout  the  French  Republic"  ;*  and,  on  his  arrival, 
they  informed  Monroe  that  the  directory  would  no  longer  recognize  or 
receive  a  Minister  Plenipotentiary  from  the  United  States,  until  after 
a  reparation  of  the  grievances  demanded  of  the  American  Govern- 
ment, and  which  the  French  Republic  has  a  right  to  expect."^ 


1  1  F.  R.  F.,  753-758.  *6  Garden.  Traites  de  Paix.  117. 

2  lb.,  742.  M  F.  R.  F..  746. 

3  lb.,  745. 


14  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

Pinckney  was  thereupon  ordered  to  quit  France  under  circumstances 
of  great  indignity,^  and  Monroe  took  his  formal  leave  on  the  30th 
December,  1796.  In  reply  to  his  speech  at  that  time,  the  president  of 
the  directory  said :  "By  presenting,  this  day,  to  the  Executive  Direc- 
tory your  letters  of  recall,  you  offer  a  very  strange  spectacle  to  Eu- 
rope. France,  rich  in  her  freedom,  surrounded  by  the  train  of  her 
victories,  and  strong  in  the  esteem  of  her  allies,  will  not  stoop  to  cal- 
culate the  consequences  of  the  condescension  of  the  American  Gov- 
ernment to  the  wishes  of  its  ancient  tyrants.  The  French  Republic 
expects,  however,  that  the  successors  of  Columbus,  Raleigh,  and  Penn, 
always  proud  of  their  liberty,  will  never  forget  that  they  owe  it  to 
France.  They  will  weigh,  in  their  wisdom,  the  magnanimous  friend- 
ship of  the  French  people  with  the  crafty  caresses  of  perfidious  men, 
who  meditate  to  bring  them  again  under  their  former  yoke.  Assure 
the  good  people  of  America,  Mr.  Minister,  that,  like  them,  we  adore 
liberty ;  that  they  will  always  possess  our  esteem,  and  find  in  the  French 
people  that  republican  generosity  which  knows  how  to  grant  peace  as 
well  as  to  cause  its  sovereignty  to  be  respected."^ 

The  moment  this  speech  was  concluded,  the  directory,  accompanied 
by  the  Diplomatic  Corps,  passed  into  the  audience-hall  to  receive  from 
an  Aide-de-Camp  of  Bonaparte  the  four  Austrian  colors  taken  at  the 
battle  of  Areola.^  The  Diplomatic  Corps  may,  therefore,  be  pre- 
sumed to  have  witnessed  this  indignity. 

.A.  French  writer  of  authority  thus  characterizes  these  incidents : 
"Ainsi  ce  gouvernement  pretendait  que  les  £tats-unis  accedassent  a 
ses  demandes  sans  examen,  sans  discussion  prealable;  a  cet  outrage, 
le  gouvernement  franqais  en  ajouta  un  autre:  lorsque  M.  Monroe  prit 
publiquement  conge  du  directoire  executif,  Barras,  qui  en  etait  le  pre- 
sident, lui  adressa  un  discours  rempli  d'expressions  qui  durent  choquer 
les  Americains."* 

In  closing  the  sketch  of  what  took  place  during  the  administration 
of  President  Washington,  it  only  remains  to  say  that  in  addition  to 
the  acts  of  the  2d  of  July  and  the  31st  of  October,  1796,  already  re- 


1  2  F.  R.  F.,  710.  3  R^dacteur,  No.  382,  Jan.  1,  1797. 

2  1  F.  R.  F.,  747. 

*  6  Garden,  Traites  de  Paix,  118.  "Thus  this  government  pretended  that  the 
United  States  should  accede  to  its  demands  without  examination,  without  dis- 
cussion. To  this  outrage  the  French  Government  added  another :  While  Mr. 
Monroe  took  public  leave  of  the  Executive  Directory,  Barras,  who  was  the 
president,  made  him  a  speech  full  of  expressions  calculated  to  shock  the  Amer- 
icans." 


HISTORICAL  INTRODUCTION  15 

ferred  to,  the  Executive  Directory,  on  the  2d  of  March,  1797,  decreed 
that  all  neutral  ships  with  enemy's  property  on  board  might  be  cap- 
tured; that  enemy's  property  in  neutral  bottoms  might  be  confiscated; 
that  the  Treaty  of  1778  with  the  United  States  should  be  modified  by 
the  operation  of  the  favored  nation  clause,  so  as  to  conform  to  Jay's 
Treaty,  in  the  following  respects :  ( 1 )  That  property  in  American 
bottoms  not  proved  to  be  neutral  should  be  confiscated;  (2)  That  the 
list  of  contraband  of  war  should  be  made  to  conform  to  Jay's  Treaty ; 
(3)  That  Americans  taking  a  commission  against  France  should  be 
treated  as  pirates :  and  that  every  American  ship  should  be  good  prize 
which  should  not  have  on  board  a  crew-list  in  the  form  prescribed  by 
the  model  annexed  to  the  Treaty  of  1778,  the  observance  of  which 
was  required  by  the  25th  and  27th  Articles.^  The  25th  Article  made 
provision  for  a  passport,  and  for  a  certificate  of  cargo.  The  27th 
Article  took  notice  only  of  the  passport ;  and  the  model  of  the  passport 
only  was  annexed  to  the  Treaty.  The  Treaty  required  that  the  pass- 
port should  express  the  name,  property,  and  bulk  of  the  ship,  and  the 
name  and  place  of  habitation  of  the  master,  but  it  made  no  provision 
respecting  the  crew-list.  After  the  adoption  of  the  Constitution,  Con- 
gress, by  general  laws,  made  provision  for  national  official  documents, 
for  proof  of,  among  other  things,  the  facts  referred  to  in  the  25th  and 
27th  Articles  of  the  Treaty  with  France.  The  name  of  the  ship  was 
to  be  painted  on  her  stern,  and  to  be  shown  in  the  Register  f  her  own- 
ership was  to  be  proved  on  oath,  and  be  stated  in  the  Register,^  and 
her  tonnage  was  to  be  stated  in  the  same  instrument,  as  the  result  of 
our  official  survey.*  Equally  cogent  laws  were  made  to  ensure  an 
accurate  crew-list.^  It  is  probable,  therefore,  that  when  the  decree  of 
March  2,  1797,  was  made,  there  was  not  an  American  ship  afloat  with 
the  required  document;  and  it  is  equally  probable  that  the  French 
Government,  which,  with  the  whole  civilized  world,  had  acquiesced  in 
the  sufficiency  of  the  new  national  system,  knew  that  to  be  the  fact. 
The  decree  was,  therefore,  equivalent  in  its  operation  to  a  declaration 
of  maritime  war  against  American  commerce.  The  United  States  had 
at  that  time  no  navy  against  which  such  a  war  could  be  carried  on. 

The  difficulties  in  dealing  with  these  questions  were  increased  by  the 
attitude  of  other  foreign  powers.    The  Batavian  Republic  besought  the 


12  F.  R.  R,  31.  4  lb.,  290;  see  also  lb.,  55,  et  seq. 

2  1  St.  at  L.,  288.  s  lb.,  31. 

3  lb.,  289. 


16  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

United  States  Minister  to  represent  to  his  Government  "how  useful  it 
would  be  to  the  interests  of  the  inhabitants  of  the  two  republics,  that 
the  United  States  should  at  last  seriously  take  to  heart  the  num- 
berless insults  daily  committed  on  their  flag  by  the  English"  ;^  and  the 
Spanish  Minister  at  Philadelphia  formally  remonstrated  against  the 
British  Treaty  of  1794  as  a  violation  of  a  Treaty  with  Spain  concluded 
a  year  later,  because  it  did  not  make  the  neutral  flag  secure  the  goods ; 
because  it  extended  the  list  of  contraband ;  and  because  it  assumed 
that  Great  Britain  had  the  right  of  navigation  of  the  Mississippi.^ 

President  Adams,  in  his  speech  at  the  opening  of  the  first  session 
of  the  Fifth  Congress  (May  16,  1797),  said:  "With  this  conduct  of 
the  French  Government  it  will  be  proper  to  take  into  view  the  public 
audience  given  to  the  late  minister  of  the  United  States,  on  his  taking 
leave  of  the  Executive  Directory.  The  speech  of  the  President  dis- 
closes sentiments  more  alarming  than  the  refusal  of  a  minister,  because 
more  dangerous  to  our  independence  and  union,  and  at  the  same  time 
studiously  marked  with  indignities  towards  the  Government  of  the 
United  States.  It  evinces  a  disposition  to  separate  the  people  of  the 
United  States  from  the  Government;  to  persuade  them  that  they  have 
different  affections,  principles,  and  interests  from  those  of  their  fel- 
low-citizens whom  they  themselves  have  chosen  to  manage  their  com- 
mon concerns ;  and  thus,  to  produce  divisions  fatal  to  our  peace.  Such 
attempts  ought  to  be  repelled  with  a  decision  which  shall  convince 
France  and  the  world  that  we  are  not  a  degraded  people,  humiliated 
under  a  colonial  spirit  of  fear  and  sense  of  inferiority,  fitted  to  be  the 
miserable  instruments  of  foreign  influence,  and  regardless  of  national 
honor,  character,  and  interest.     *     *     * 

"The  diplomatic  intercourse  between  the  United  States  and  France 
being  at  present  suspended,  the  Government  has  no  means  of  obtaining 
official  information  from  that  country ;  nevertheless  there  is  reason  to 
believe  that  the  Executive  Directory  passed  a  decree  on  the  2d  of 
March  last,  contravening,  in  part,  the  treaty  of  amity  and  commerce 
of  1778,  injurious  to  our  lawful  commerce,  and  endangering  the  lives 
of  our  citizens.    A  copy  of  this  treaty  will  be  laid  before  you. 

"While  we  are  endeavoring  to  adjust  all  of  our  differences  with 
France,  by  amicable  negotiation,  the  progress  of  the  war  in  Europe,  the 
depredations  on  our  commerce,  the  personal  injuries  to  our  citizens, 
and  general  complexion  of  affairs,  render  it  my  indispensable  duty  to 
recommend  to  your  consideration  effectual  measures  of  defence.^ 


1  2  F.  R.  F.,  13.  2  lb.,  14.  s  Annals  5th  Cong.,  55. 


HISTORICAL  INTRODUCTION  17 

"It  is  impossible  to  conceal  from  ourselves,  or  the  world,  what  has 
been  before  observed,  that  endeavors  have  been  employed  to  foster  and 
establish  a  division  between  the  government  and  people  of  the  United 
States.  To  investigate  the  causes  which  have  encouraged  this  attempt 
is  not  necessary.  But  to  repel,  by  decided  and  united  counsels,  insinua- 
tions so  derogatory  to  the  honor,  and  aggression  so  dangerous  to  the 
Constitution,  union,  and  even  independence  of  the  nation,  is  an  indis- 
pensable duty."^ 

The  answer  of  the  House  to  this  speech  was  in  a  conciliatory  spirit ; 
and  on  the  first  of  the  following  June  Congress  yielded  so  far  as  to 
pass  a  law  providing  for  passports  for  ships  and  vessels  of  the  United 
States.^ 

Congress  adjourned  on  the  10th  of  July.  On  the  13th  President 
Adams  commissioned  Charles  Cotesworth  Pinckney,  John  Marshall, 
and  Elbridge  Gerry  as  Envoys  to  proceed  to  France  and  endeavor  to 
renew  the  relations  which  had  been  so  rudely  broken  by  the  Directory. 
Their  instructions  will  be  found  in  the  2d  volume  of  the  Folio  Foreign 
Relations,  pages  153,  et  seq.  Among  other  matters  they  were  to  secure 
an  adjustment  of  the  claims  for  spoliations  of  citizens  of  the  United 
States,  by  this  time  amounting  to  many  millions  of  dollars. 

They  arrived  in  Paris  on  the  evening  of  the  4th  of  October,  1797,^ 
and  at  once  notified  the  Foreign  Minister  of  their  presence  and  re- 
quested an  interview.  Instead  of  receiving  them,  three  gentlemen, 
who  have  become  known  in  history  as  X,  Y,  and  Z,  waited  upon  them 
at  various  times,  sometimes  singly  and  sometimes  together,  and 
claimed  to  speak  for  Talleyrand  and  the  Directory.  They  told  the 
Envoys  that  they  must  pay  money,  "a  great  deal  of  money"  ;*  and 
when  they  were  asked  how  much,  they  replied  "fifty  thousand  pounds 
sterling"^  as  a  douceur  to  the  Directory,  and  a  loan  to  France  of 
thirty-two  millions  of  Dutch  florins.  They  said  that  the  passages  in 
the  President's  speech,  which  are  quoted  above,  had  offended  the 
Directory,  and  must  be  retracted,  and  they  urged  upon  the  commis- 
sioners in  repeated  interviews  the  necessity  of  opening  the  negotia- 
tions by  proposals  to  that  effect." 

The  American  commissioners  listened  to  their  statements,  and  after 
consultation  determined  that  they  "should  hold  no  more  indirect  inter- 


1  Annals  5th  Cong.  59.  ■•  lb.,  159. 

2  1  St.  at  L.,  489.  ^  ib. 

3  2  F.  R.  R,  157.  8  lb.,  158-168. 


18  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

course  with  the  Government.^  They  addressed  a  letter  to  Talleyrand 
on  the  11th  of  November,  informing  him  that  they  were  ready  to  nego- 
tiate.^ They  got  no  answer ;  but  on  the  14th  of  December,  X  appeared 
again,^  on  the  17th  Y  appeared,*  and  on  the  20th  "a  lady,  who  is  well 
acquainted  with  M.  Talleyrand,"  talked  to  Pinckney  on  the  subject;^ 
still  they  got  no  answer  from  Talleyrand,  and  on  the  18th  of  January 
they  read  the  announcement  of  a  decree  that  every  vessel  found  at  sea 
loaded  with  merchandise  the  production  of  England  should  be  good 
prize.^  Though  unrecognized,  they  addressed  an  elaborate  letter  on 
the  27th  of  January,  1798,  to  Talleyrand,  setting  forth  in  detail  and 
with  great  ability  the  grievances  of  the  United  States.'^  On  the  2d 
of  March,  they  had  an  interview  with  him.  He  repeated  that  the 
Directory  had  taken  offense  at  Mr.  Adams's  speech,  and  added  that 
they  had  been  wounded  by  the  last  speech  of  President  Washington. 
He  complained  that  the  Envoys  had  not  been  to  see  him  personally ; 
and  he  urged  that  they  should  propose  a  loan  to  France.^  Pinckney 
said  that  the  propositions  seemed  to  be  those  made  by  X  and  Y.  The 
Envoys  then  said  that  they  had  no  power  to  agree  to  make  such  a  loan. 
On  the  18th  of  March,  Talleyrand  transmitted  his  reply  to  their  note. 
He  dwelt  upon  Jay's  Treaty  as  the  principal  grievance  of  France.  He 
says  "he  will  content  himself  with  observing,  summarily,  that  in  this 
Treaty  everything  having  been  calculated  to  turn  the  neutrality  of  the 
United  States  to  the  disadvantage  of  the  French  Republic,  and  to  the 
advantage  of  England ;  that  the  Federal  Government  having  in  this 
act  made  to  Great  Britain  concessions  the  most  unheard  of,  the  most 
incompatible  with  the  interests  of  the  United  States,  the  most  deroga- 
tory to  the  alliance  which  subsisted  between  the  said  States  and  the 
French  Republic,  the  latter  was  perfectly  free,  in  order  to  avoid  the 
inconveniences  of  the  Treaty  of  London,  to  avail  itself  of  the  preserva- 
tive means  with  which  the  law  of  nature,  the  laws  of  nations,  and  prior 
treaties  furnish  it.''  He  closed  by  stating  "that  notwithstanding  the 
kind  of  prejudice  which  has  been  entertained  with  respect  to  them, 
the  Executive  Directory  is  disposed  to  treat  with  that  one  of  the  three 
whose  opinions,  presumed  to  be  more  impartial,  promise,  in  the  course 
of  the  explanation,  more  of  that  reciprocal  confidence  which  is  indis- 
pensable."® 

8  1  F.  R.  F.,  182. 

7  lb.,  169. 

8  lb.,  186. 

9  lb.,  190-191. 


12  F 

.  R.  F., 

164. 

2  lb., 

166. 

Mb. 

Mb., 

177. 

5  1b.. 

167. 

HISTORICAL  INTRODUCTION  19 

Gerry  was  the  member  referred  to.  The  three  Envoys  answered 
that  no  one  of  the  three  was  authorized  to  take  the  negotiation  upon 
himself.^  Pinckney  and  Marshall  then  left  Paris.  Gerry  remained. 
Talleyrand  tried  to  induce  him  to  enter  into  negotiations  for  a  loan  to 
France,  but  he  refused. ^  Before  he  left  Paris,  a  mail  arrived  from 
America  bringing  printed  copies  of  the  despatches  of  the  Envoys,  with 
accounts  of  their  interviews  with  X,  Y,  and  Z  and  "the  lady."  Talley- 
rand at  once  asked  Gerry  for  the  four  names.^  Gerry  gave  him  the 
name  of  Y,  Mr.  Bellamy,  and  Z,  Mr.  Hautval,  and  said  that  he  could 
not  give  the  lady's  name,  and  would  not  give  X's  name.  The  name  of 
X  is  preserved  in  the  Department  of  State.  Gerry  left  Paris  on  the 
26th  July,  1798. 

The  President  transmitted  to  Congress  the  reports  of  the  Envoys 
as  fast  as  they  were  received ;  and  when  he  heard  of  Marshall's  ar- 
rival in  America  he  said  to  Congress,  "I  will  never  send  another  Min- 
ister to  France  without  assurances  that  he  will  be  received,  re- 
spected, and  honored  as  the  representative  of  a  great,  free,  powerful, 
and  independent  nation."*  The  statutes  of  the  United  States  show 
the  impression  which  the  news  made  upon  Congress.  The  "Act  to 
provide  an  additional  armament  for  the  further  protection  of  the  trade 
of  the  United  States,  and  for  other  purposes,"^  is  the  first  of  a  series 
of  acts.  It  was  passed  in  the  House  amid  great  excitement.  Edward 
Livingston,  who  closed  the  debate  on  the  part  of  the  opposition,  said : 
"Let  no  man  flatter  himself  that  the  vote  which  has  been  given  is  not 
a  declaration  of  war.  Gentlemen  know  that  this  is  the  case."®  This 
was  followed  in  the  course  of  a  few  weeks  by  acts  for  organizing  a 
Navy  Department ;''  for  increasing  or  regulating  the  Army  f  for  pur- 
chasing arms  f  for  construction  of  vessels  \^^  for  authorizing  the  cap- 
ture of  French  vessels  ;^^  for  suspending  all  intercourse  with  France  ;^^ 
for  authorizing  merchant- vessels  to  protect  themselves  ;^^  for  abrogat- 
ing the  Treaties  with  France  ;^*  for  establishing  a  Marine  Corps  ;^^  and 


1 1  F.  R.  R,  199.  e  lb.,  555,  576. 

2  lb.,  204-238.  10  lb.,  556,  569,  608. 

8  lb.,  210.  "  lb.,  561,  578. 

*  lb.,  199.  12  lb.,  565. 

5  1  St.  at  L.,  552.  "  jb.,  572. 

«2  Annals  5th  Cong.,  1519.  i*  lb.,  578. 

7  1  St.  at  L.,  553.  "  lb.,  594. 

8  lb..  552.  558.  604. 


20  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

for  authorizing  the  borrowing  of  money. ^  In  the  next  session  of  Con- 
gress further  augmentation  of  the  Navy^  and  of  the  Army^  was  made ; 
the  suspension  of  intercourse  was  prolonged,*  and  provisions  were 
made  for  restoring  captured  French  citizens,^  and  for  retahations  in 
case  of  death  from  impressments.^ 

Washington  was  made  Lieutenant-General  and  Commander-in-Chief 
of  the  Army,  and,  in  accepting,  said:  "The  conduct  of  the  Directory 
of  France  towards  our  country;  their  insidious  hostility  to  its  Govern- 
ment ;  their  various  practices  to  withdraw  the  affections  of  the  people 
from  it ;  the  evident  tendency  of  their  acts  and  those  of  their  agents  to 
countenance  and  invigorate  opposition;  their  disregard  of  solemn 
treaties  and  the  law  of  nations ;  their  war  upon  our  defenceless  com- 
merce ;  their  treatment  of  our  Ministers  of  peace ;  and  their  demands, 
amounting  to  tribute,  could  not  fail  to  excite  in  me  corresponding  senti- 
ments with  those  my  countrymen  have  so  generally  expressed  in  affec- 
tionate addresses  to  you."^ 

The  Attorney-General  gave  an  opinion  that  a  maritime  war  existed 
between  France  and  the  United  States,  authorized  by  both  nations,* 
but  Congress  never  made  the  constitutional  declaration  of  war,  nor  was 
such  a  declaration  made  on  the  other  side. 

It  was  on  the  21st  of  June  that  President  Adams  informed  Congress 
of  the  terms  on  which  alone  he  would  be  willing  to  send  a  new  Minister 
to  France.  Talleyrand  immediately  opened  indirect  means  of  com- 
munication with  the  American  Cal5inet  through  Murray,  the  American 
Minister  at  The  Hague,**  and  on  the  28th  of  September  he  sent  word 
through  Pichon,  the  French  Secretary  of  Legation  at  the  same  place, 
that  "whatever  plenipotentiary  the  Government  of  the  United  States 
might  send  to  France  in  order  to  terminate  the  existing  differences 
between  the  two  countries,  he  would  be  undoubtedly  received  with  the 
respect  due  to  the  representative  of  a  free,  independent  and  powerful 
nation.^"  To  this  proffer,  embodying  the  language  of  the  President's 
message  to  Congress,  the  President  replied  by  empowering  Chief- 
Justice  Ellsworth,  Mr.  Davie,  and  Mr.  Murray  "to  discuss  and  settle, 
by  a  Treaty,  all  controversies  between  the  United  States  and  France. "^^ 

When  these  Envoys  arrived  in  France  they  found  that  the  Directory 

1  1  St.  at  L.,  607.  7  Annals  5th  Cong.,  622. 

2  lb.,  621.  '81  Op.  At.  Gen.,  84,  Lee. 

3  lb.,  725.  9  2  F.  R.  F.,  241. 
*  lb.,  613.  ^0  lb.,  242. 

^  lb.,  624.  "  lb.,  243. 

«Ib.,  743.  • 


HISTORICAL  INTRODUCTION  21 

had  been  overthrown/  and  they  had  to  deal  with  Bonaparte  as  first 
Consul.  They  succeeded  in  restoring  good  relations.  An  account  of 
their  negotiations  will  be  found  in  the  2d  volume  of  the  Folio  Edition 
of  the  Foreign  Relations,  pages  307  to  345.  Their  instructions  required 
them  to  secure,  (1)  A  claims  commission.  (2)  Abrogation  of  the  old 
treaties.  (3)  Abolition  of  the  guarantee  of  1778.  (4)  No  agreement 
for  a  loan.  (5)  No  engagements  inconsistent  with  prior  Treaties, 
meaning  doubtless  Jay's  Treaty.  (6)  No  renewal  of  the  peculiar 
jurisdiction  conferred  on  consuls  by  the  convention  of  1788.  (7) 
Duration  of  a  Treaty  not  to  exceed  twelve  years.^ 

The  negotiators  exchanged  their  powers  on  the  7th  of  April,  1800,* 
and  concluded  a  treaty  on  the  30th  of  the  following  September,  which 
(1)  declared  that  the  parties  could  not  agree  upon  the  indemnities;  (2) 
nor  as  to  the  old  treaties;  (3)  and  consequently  was  silent  respecting 
the  guarantee;  but  (4)  made  no  provisions  for  a  loan;  (5)  made  no 
engagements  inconsistent  with  prior  treaties;  (6)  did  not  renew  the 
objectionable  consular  provisions;  and  (7)  no  limitation  was  set  to  its 
operation. 

When  it  was  submitted  to  the  Senate  that  body  advised  its  ratifica- 
tion, provided  the  second  article  concerning  indemnities  should  be  ex- 
punged, and  that  the  convention  should  be  in  force  for  eight  years 
from  the  date  of  the  exchange  of  the  ratifications.  The  French  Gov- 
ernment assented  to  the  limitation  of  the  duration  of  the  Treaty,  and 
to  the  expunging  of  the  2d  article,  upon  condition  that  it  should  be 
understood  that  thereby  each  party  renounced  the  pretensions  which 
were  the  objects  of  the  article;  which  was  assented  to  by  the  Senate.* 

On  the  day  following  the  signature  of  this  Treaty  in  Paris  (Sept. 
30,  1800),  a  secret  treaty  was  concluded  at  St.  Ildefonso  between 
France  and  Spain,  which  came  to  be  of  importance  to  the  United 
States.  This  was  the  Treaty  by  which  Louisiana  was  restored  to 
France.  In  consideration  of  the  elevation  of  the  Duke  of  Parma  to 
the  rank  of  King,  and  the  enlargement  of  his  territory,  it  was  agreed 
that  "Sa  Majeste  Catholique  donnera  les  ordres  necessaires  pour  que 
la  France  occupe  la  Louisiane  au  moment  ou  S.  A.  R.  le  due  de  Parme 
sera  mise  en  possession  de  ses  nouveaux  Etats."® 


1  2  F.  R.  F,  307.  3  lb.,  313-14. 

2  lb.,  306.  *  lb.,  344. 

•'S  Garden,  Traites  de  Paix,  48;  S.  Doc.  56,  2d  Sess.  23d  Cong.  "His  Catholic 
Majesty  will  give  the  necessary  orders  so  that  France  may  occupy  Louisiana 
the  moment  when  His  Royal  Highness  the  Duke  of  Parma  shall  be  put  in  pos- 
session of  his  new  State." 


22  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

The  United  States  were  anxious  concerning  the  effect  of  this  upon 
their  future.^  But  the  failure  of  the  Treaty  of  Amiens  to  restore  a 
permanent  peace  induced  Napoleon  to  determine  to  transfer  all  the 
Louisianas  to  the  United  States.  He  consulted  Berthier  and  Marbois. 
The  conference  lasted  far  into  the  night.  Berthier  opposed  the  ces- 
sion. Marbois  favored  it.  Early  the  next  morning  he  called  Marbois 
to  him  and  said,  "Je  nonce  a  la  Louisiane.  Ce  n'est  point  seulement  la 
Nouvelle-Orleans  que  je  veux  ceder;  c'est  toute  la  colonic  sans  en 
rien  reserver."^ 

The  interview  took  place  on  the  10th  of  April  f  the  decision  was 
made  on  the  morning  of  the  11th.  On  the  afternoon  of  the  same  day 
the  negotiations  opened  by  an  abrupt  question  from  Talleyrand  to  Liv- 
ingston whether  the  United  States  wished  for  the  whole  of  Louisiana. 
Livingston,  who  had  been  instructed  only  to  negotiate  for  New  Or- 
leans, and  the  Mississippi  as  a  boundary  line,*  said,  "No,  we  only 
want  New  Orleans  and  the  Floridas."^  But  he  soon  found  that  he  was 
dealing  with  a  much  larger  question,  and  Monroe  arrived  the  same 
day  from  America  with  fresh  instructions  to  aid  in  its  disposition. 
Napoleon  empowered  Marbois  to  negotiate  for  France,  and  instructed 
him  to  consent  to  the  transfer,  provided  he  could  secure  50,000,000 
francs.  He  did  secure  80,000,000,  twenty  millions  of  which  were  to 
be  applicable  to  the  extinguishment  of  claims  against  France,  and  sixty 
millions  were  payable  in  cash  to  France.  When  it  was  concluded. 
Napoleon  said :  "Cette  accession  de  territoire,  aff ermit  pour  toujours  la 
puissance  des  Etats-Unis,  et  je  viens  de  donner  a  TAngleterre  un  rival 
maritime,  qui  tot  ou  tard  abaissera  son  orgueil."*' 

Between  the  conclusion  of  the  two  Treaties  of  1800  and  1803  a  corre- 
spondence arose  respecting  the  construction  of  the  former  Treaty.'^ 
Robert  Livingston,  the  Minister  of  the  United  States,  complained  that 
the  Council  of  Prizes  (which  he  regarded  "as  a  political  board" )^ 
was  proceeding  in  violation  of  the  provisions  of  the  Treaty.     On  the 


1  2  F.  R.  R,  552. 

2  8  Garden,  Traites  de  Paix,  64.  "I  renounce  Louisiana.  It  is  not  New  Or- 
leans only  that  I  wish  to  cede;  it  is  all  the  colony,  reserving  nothing." 

s  8  Garden,  Traites  de  Paix,  54.  s  2  F.  R.  F,  552. 

*  6  F.  R.  F.,  162,  No.  460. 

6  8  Garden,  Traites  de  Paix,  88.  "This  accession  of  territory  consolidates  for- 
ever the  power  of  the  United  States,  and  I  have  just  given  to  England  a  mari- 
time rival  who  sooner  or  later  will  humble  her  pride." 

7  6  F.  R.  F,  154-168.  « ib.,  156. 


HISTORICAL  INTRODUCTION  23 

26th  of  January,  1802,  he  was  "almost  hopeless"  as  to  the  claims,^ 
His  anxiety  communicated  itself  to  Madison.^  The  French  Court  next 
proposed  to  meet  the  French  obligation  in  paper  money ,^  while  the 
appropriations  on  the  American  side  were  payable  in  coin.*  Livings- 
ton thought  Bonaparte  stood  in  the  way,  and  that,  should  anything 
happen  to  him,  France  would  "very  soon  be  able  to  look  all  demands 
in  the  face."^  Monroe  was  sent  out  to  aid  in  the  negotiations,  with 
special  powers  as  to  New  Orleans  and  the  Floridas.®  He  arrived  just 
in  time  to  find  the  First  Consul  bent  on  parting  with  Louisiana  and 
settHng  with  the  United  States.  On  the  9th  of  March,  1803,  Talley- 
rand was  already  giving  signs  of  yielding.  He  expressed  surprise  at 
the  amount  of  the  American  claims  advanced  by  Livingston  (20,000,- 
000  francs),  but  avowed  his  purpose  of  paying  them,  whatever  they 
might  be,  and  asked  for  a  specified  statement.^  An  explanation,  which 
may  account  for  part  of  this,  may  be  found  in  two  dates.  The  peace 
of  Amiens  was  signed  the  25th  of  March,  1802;  the  declaration  of  the 
renewal  of  the  war  was  dated  the  18th  of  May,  1803. 

The  Convention  of  1800,  after  providing  for  the  restoration  of  cer- 
tain captured  property,  contained  a  provision  that  the  debts  contracted 
by  one  of  the  two  nations  with  individuals  of  the  other  should  be  paid,* 
but  that  this  clause  should  not  extend  to  indemnities  claimed  on  account 
of  captures  or  condemnations.  The  Convention  of  1803  stipulated 
that  these  debts,  with  interest  at  six  per  cent.,  should  not  exceed 
twenty  millions  of  francs. 

To  entitle  a  claimant  to  participate  in  this  fund,  it  was  necessary:  1. 
That  he  should  be  a  citizen  of  the  United  States  who  had  been,  and 
was  at  the  time  of  the  signing  of  the  Treaty,  a  creditor  of  France,  and 
who  had  no  established  house  of  commerce  in  France,  England,  or 
other  country  than  the  United  States,  in  partnership  with  foreigners ; 
2.  That,  if  the  claim  were  for  a  debt,  it  should  have  been  contracted 
for  supplies  before  the  30th  of  September,  1800,  and  should  have  been 
claimed  of  the  actual  Government  of  France  before  the  30th  of  April, 
1803 ;  3.  That,  if  for  prizes,  it  should  not  be  for  a  prize  whose  condem- 
nation had  been  or  should  be  confirmed;  4.  That,  if  for  captures,  it 
should  not  be  a  case  in  which  the  council  of  prizes  had  ordered  restitu- 


1  6  F.  R.  R,  156.  ^  lb..  163. 

2  lb.,  158.  6  lb.,  166. 

8  lb.,  161.  Mb.,  167-168. 

4  lb.,  162.  8  Art.  5. 


24  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

tion,  or  in  which  the  claimant  could  not  have  had  recourse  to  the  gov- 
ernment of  the  French  RepubHc,  or  where  the  captors  were  sufficient ; 
5.  That  it  should  either  be  for  supplies,  for  embargoes,  or  for  prizes 
made  at  sea,  in  which  the  appeal  had  been  properly  lodged  within  the 
time  mentioned  in  the  Convention  of  1800. 

The  distribution  of  this  money  gave  rise  to  some  sharp  correspond- 
ence.^ The  claims  which  were  excluded  from  participation  in  the  dis- 
tribution have  become  known  as  the  "French  Spoliation  Claims."  They 
have  been  often  the  subject  of  Congressional  discussion  and  report.* 


1  6  F.  R.  F.,  182-207. 

2  See  particularly  5  F.  R.  F.,  314,  352,  and  6  F.  R.  F.,  3-207,  558,  1121,  and 
S.  R.  10,  2d  Sess.  41st  Cong.,  and  the  various  authorities  there  cited;  also, 
among  others,  an  elaborate  debate  in  the  Senate,  11  Debates,  2d  Sess.  23d  Cong. 
[See  the  Act  of  Congress  approved  January  20,  1885  (post  p.  92)  by  which  the 
claims  were  referred  for  ascertainment  as  to  facts  to  the  Court  of  Claims.] 


PART  l.-STATE  PAPERS 

Extracts  from  Messages  o£  President  Adams,  and  Replies  of  the 

Senate  and  House 

SPECIAL  SESSION    MESSAGE^ 

United  States,  May  i6,  1797. 
Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of  Representa- 
tives: 

The  personal  inconveniences  to  the  members  of  the  Senate  and  of 
the  House  of  Representatives  in  leaving  their  famiHes  and  private 
affairs  at  this  season  of  the  year  are  so  obvious  that  I  the  more  regret 
the  extraordinary  occasion  which  has  rendered  the  convention  of 
Congress  indispensable. 

It  would  have  afforded  me  the  highest  satisfaction  to  have  been 
able  to  congratulate  you  on  a  restoration  of  peace  to  the  nations  of 
Europe  whose  animosities  have  endangered  our  tranquillity;  but  we 
have  still  abundant  cause  of  gratitude  to  the  Supreme  Dispenser  of 
National  Blessings  for  general  health  and  promising  seasons,  for  do- 
mestic and  social  happiness,  for  the  rapid  progress  and  ample  acquisi- 
tions of  industry  through  extensive  territories,  for  civil,  political,  and 
religious  liberty.  While  other  states  are  desolated  with  foreign  war 
or  convulsed  with  intestine  divisions,  the  United  States  present  the 
pleasing  prospect  of  a  nation  governed  by  mild  and  equal  laws,  gen- 
erally satisfied  with  the  possession  of  their  rights,  neither  envying  the 
advantages  nor  fearing  the  power  of  other  nations,  solicitous  only 
for  the  maintenance  of  order  and  justice  and  the  preservation  of  liberty, 
increasing  daily  in  their  attachment  to  a  system  of  government  in  pro- 
portion to  their  experience  of  its  utility,  yielding  a  ready  and  general 
obedience  to  laws  flowing  from  the  reason  and  resting  on  the  only  solid 
foundation — the  affections  of  the  people. 

It  is  with  extreme  regret  that  I  shall  be  obliged  to  turn  your  thoughts 
to  other  circumstances,  which  admonish  us  that  some  of  these  felicities 
may  not  be  lasting.  But  if  the  tide  of  our  prosperity  is  full  and  a  reflux 
commencing,  a  vigilant  circumspection  becomes  us,  that  we  may  meet 
out  reverses  with  fortitude  and  extricate  ourselves  from  their  conse- 
quences with  all  the  skill  we  possess  and  all  the  efforts  in  our  power. 

In  giving  to  Congress  information  of  the  state  of  the  Union  and  rec- 


1  Richardson,  Messages,  vol.  1,  p.  233. 


26  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

ommending  to  their  consideration  such  measures  as  appear  to  me  to  be 
necessary  or  expedient,  according  to  my  constitutional  duty,  the  causes 
and  the  objects  of  the  present  extraordinary  session  will  be  explained. 

After  the  President  of  the  United  States  received  information  that 
the  French  Government  had  expressed  serious  discontents  at  some  pro- 
ceedings of  the  Government  of  these  States  said  to  affect  the  interests 
of  France,  he  thought  it  expedient  to  send  to  that  country  a  new  min- 
ister, fully  instructed  to  enter  on  such  amicable  discussions  and  to  give 
such  candid  explanations  as  might  happily  remove  the  discontents  and 
suspicions  of  the  French  Government  and  vindicate  the  conduct  of 
the  United  States.  For  this  purpose  he  selected  from  among  his  fellow- 
citizens  a  character  whose  integrity,  talents,  experience,  and  services 
had  placed  him  in  the  rank  of  the  most  esteemed  and  respected  in  the 
nation.  The  direct  object  of  his  mission  was  expressed  in  his  letter 
of  credence  to  the  French  Republic,  being  "to  maintain  that  good  un- 
derstanding which  from  the  commencement  of  the  alliance  had  sub- 
sisted between  the  two  nations,  and  to  efface  unfavorable  impressions, 
banish  suspicions,  and  restore  that  cordiality  which  was  at  once  the  evi- 
dence and  pledge  of  a  friendly  union."  And  his  instructions  were  to 
the  same  effect,  "faithfully  to  represent  the  disposition  of  the  Govern- 
ment and  people  of  the  United  States  (their  disposition  being  one),  to 
remove  jealousies  and  obviate  complaints  by  shewing  that  they  were 
groundless,  to  restore  that  mutual  confidence  which  had  been  so  un- 
fortunately and  injuriously  impaired,  and  to  explain  the  relative  in- 
terests of  both  countries  and  the  real  sentiments  of  his  own." 

A  minister  thus  specially  commissioned  it  was  expected  would  have 
proved  the  instrument  of  restoring  mutual  confidence  between  the  two 
Republics.  The  first  step  of  the  French  Government  corresponded  with 
that  expectation.  A  few  days  before  his  arrival  at  Paris  the  French 
minister  of  foreign  relations  informed  the  American  minister  then 
resident  at  Paris  of  the  formalities  to  be  observed  by  himself  in  taking 
leave,  and  by  his  successor  preparatory  to  his  reception.  These  for- 
malities they  observed,  and  on  the  9th  of  December  presented  officially 
to  the  minister  of  foreign  relations,  the  one  a  copy  of  his  letters  of  re- 
call, the  other  a  copy  of  his  letters  of  credence. 

These  were  laid  before  the  Executive  Directory.  Two  days  after- 
wards the  minister  of  foreign  relations  informed  the  recalled  Ameri- 
can minister  that  the  Executive  Directorv  had  determined  not  to  re- 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  27 

ceive  another  minister  plenipotentiary  from  the  United  States  until 
after  the  redress  of  grievances  demanded  of  the  American  Govern- 
ment, and  which  the  French  Republic  had  a  right  to  expect  from  it. 
The  American  minister  immediately  endeavored  to  ascertain  whether 
by  refusing  to  receive  him  it  was  intended  that  he  should  retire  from 
the  territories  of  the  French  Republic,  and  verbal  answers  were  given 
that  such  was  the  intention  of  the  Directory.  For  his  own  justification 
he  desired  a  written  answer,  but  obtained  none  until  toward  the  last 
of  January,  when,  receiving  notice  in  writing  to  quit  the  territories  of 
the  Republic,  he  proceeded  to  Amsterdam,  where  he  proposed  to  wait 
for  instruction  from  this  Government.  During  his  residence  at  Paris 
cards  of  hospitality  were  refused  him,  and  he  was  threatened  with 
being  subjected  to  the  jurisdiction  of  the  minister  of  police;  but  with 
becoming  firmness  he  insisted  on  the  protection  of  the  law  of  nations 
due  to  him  as  the  known  minister  of  a  foreign  power.  You  will  derive 
further  information  from  his  dispatches,  which  will  be  laid  before  you. 

As  it  is  often  necessary  that  nations  should  treat  for  the  mutual  ad- 
vantage of  their  afi'airs,  and  especially  to  accommodate  and  terminate 
differences,  and  as  they  can  treat  only  by  ministers,  the  right  of  em- 
bassy is  well  known  and  established  by  the  law  and  usage  of  nations. 
The  refusal  on  the  part  of  France  to  receive  our  minister  is,  then,  the 
denial  of  a  right ;  but  the  refusal  to  receive  him  until  we  have  acceded 
to  their  demands  without  discussion  and  without  investigation  is  to 
treat  us  neither  as  allies  nor  as  friends,  nor  as  a  sovereign  state. 

With  this  conduct  of  the  French  Government  it  will  be  proper  to 
take  into  view  the  public  audience  given  to  the  late  minister  of  the 
United  States  on  his  taking  leave  of  the  Executive  Directory.  The 
speech  of  the  President  discloses  sentiments  more  alarming  than  the 
refusal  of  a  minister,  because  more  dangerous  to  our  independence  and 
union  and  at  the  same  time  studiously  marked  with  indignities  toward 
the  Government  of  the  United  States.  It  evinces  a  disposition  to  sepa- 
rate the  people  of  the  United  States  from  the  Government,  to  persuade 
them  that  they  have  different  affections,  principles,  and  interests  from 
those  of  their  fellow-citizens  whom  they  themselves  have  chosen  to 
manage  their  common  concerns,  and  thus  to  produce  divisions  fatal  to 
our  peace.  Such  attempts  ought  to  be  repelled  with  a  decision  which 
shall  convince  France  and  the  world  that  we  are  not  a  degraded  peo- 
ple, humiliated  under  a  colonial  spirit  of  fear  and  sense  of  inferiority. 


28  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

fitted  to  be  the  miserable  instruments  of  foreign  influence,  and  re- 
gardless of  national  honor,  character,  and  interest. 

I  should  have  been  happy  to  have  thrown  a  veil  over  these  transac- 
tions if  it  had  been  possible  to  conceal  them;  but  they  have  passed  on 
the  great  theater  of  the  world,  in  the  face  of  all  Europe  and  America, 
and  with  such  circumstances  of  publicity  and  solemnit)'  that  they  can 
not  be  disguised  and  will  not  soon  be  forgotten.  They  have  inflicted 
a  wound  in  the  American  breast.  It  is  my  sincere  desire,  however, 
that  it  may  be  healed. 

It  is  my  sincere  desire,  and  in  this  I  presume  I  concur  with  you  and 
with  our  constituents,  to  preserve  peace  and  friendship  with  all  na- 
tions ;  and  believing  that  neither  the  honor  nor  the  interest  of  the  United 
States  absolutely  forbid  the  repetition  of  advances  for  securing  these 
desirable  objects  with  France,  I  shall  institute  a  fresh  attempt  at 
negotiation,  and  shall  not  fail  to  promote  and  accelerate  an  accommoda- 
tion on  terms  compatible  with  the  rights,  duties,  interests,  and  honor 
of  the  nation.  If  we  have  committed  errors,  and  these  can  be  demon- 
strated, we  shall  be  willing  to  correct  them;  if  we  have  done  injuries, 
we  shall  be  willing  on  conviction  to  redress  them ;  and  equal  measures 
of  justice  we  have  a  right  to  expect  from  France  and  every  other 
nation. 

The  diplomatic  intercourse  between  the  United  States  and  France 
being  at  present  suspended,  the  Government  has  no  means  of  obtain- 
ing official  information  from  that  country.  Nevertheless,  there 
is  reason  to  believe  that  the  Executive  Directory  passed  a  decree 
on  the  2d  of  March  last  contravening  in  part  the  treaty  of  amity  and 
commerce  of  1778,  injurious  to  our  lawful  commerce  and  endangering 
the  lives  of  our  citizens.    A  copy  of  this  decree  will  be  laid  before  you. 

While  we  are  endeavoring  to  adjust  all  our  differences  with  France 
by  amicable  negotiation,  the  progress  of  the  war  in  Europe,  the  depre- 
dations on  our  commerce,  the  personal  injuries  to  our  citizens,  and  the 
general  complexion  of  affairs  render  it  my  indispensable  duty  to  recom- 
mend to  your  consideration  effectual  measures  of  defense. 

The  commerce  of  the  United  States  has  become  an  interesting  object 
of  attention,  whether  we  consider  it  in  relation  to  the  wealth  and 
finances  or  the  strength  and  resources  of  the  nation.  With  a  seacoast 
of  near  2.0CK)  miles  in  extent,  opening  a  wide  field  for  fisheries,  navi- 
gation, and  commerce,  a  great  portion  of  our  citizens  naturally  apply 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  29 

their  industry  and  enterprise  to  these  objects.  Any  serious  and  perma- 
nent injury  to  commerce  would  not  fail  to  produce  the  most  embar- 
rassing disorders.  To  prevent  it  from  being  undermined  and  destroyed 
it  is  essential  that  it  receive  an  adequate  protection. 

The  naval  establishment  must  occur  to  every  man  who  considers  the 
injuries  committed  on  our  commerce,  the  insults  offered  to  our  citizens, 
and  the  description  of  vessels  by  which  these  abuses  have  been  prac- 
ticed. As  the  sufferings  of  our  mercantile  and  seafaring  citizens  can 
not  be  ascribed  to  the  omission  of  duties  demandable,  considering  the 
neutral  situation  of  our  country,  they  are  to  be  attributed  to  the  hope 
of  impunity  arising  from  a  supposed  inability  on  our  part  to  afford 
protection.  To  resist  the  consequences  of  such  impressions  on  the 
minds  of  foreign  nations  and  to  guard  against  the  degradation  and 
servility  which  they  must  finally  stamp  on  the  American  character  is  an 
important  duty  of  Government. 

A  naval  power,  next  to  the  militia,  is  the  natural  defense  of  the 
United  States.  The  experience  of  the  last  war  would  be  sufficient  to 
shew  that  a  moderate  naval  force,  such  as  would  be  easily  within  the 
present  abilities  of  the  Union,  would  have  been  sufficient  to  have  baf- 
fled many  formidable  transportations  of  troops  from  one  State  to 
another,  which  were  then  practiced.  Our  seacoasts,  from  their  great 
extent,  are  more  easily  annoyed  and  more  easily  defended  by  a  naval 
force  than  any  other.  With  all  the  materials  our  country  abounds ;  in 
skill  our  naval  architects  and  navigators  are  equal  to  any,  and  com- 
manders and  seamen  will  not  be  wanting. 

But  although  the  establishment  of  a  permanent  system  of  naval  de- 
fense appears  to  be  requisite,  I  am  sensible  it  can  not  be  formed  so 
speedily  and  extensively  as  the  present  crisis  demands.  Hitherto  I 
have  thought  proper  to  prevent  the  sailing  of  armed  vessels  except  on 
voyages  to  the  East  Indies,  where  general  usage  and  the  danger  from 
pirates  appeared  to  render  the  permission  proper.  Yet  the  restriction 
has  originated  solely  from  a  wish  to  prevent  collisions  with  the  powers 
at  war,  contravening  the  act  of  Congress  of  June.  1794,  and  not  from 
any  doubt  entertained  by  me  of  the  policy  and  propriety  of  permitting 
our  vessels  to  employ  means  of  defense  while  engaged  in  a  lawful 
foreign  commerce.  It  remains  for  Congress  to  prescribe  such  regula- 
tions as  will  enable  our  seafaring  citizens  to  defend  themselves  against 
violations  of  the  law  of  nations,  and  at  the  same  time  restrain  them 


30  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

from  committing  acts  of  hostility  against  the  powers  at  war.  In  addi- 
tion to  this  voluntary  provision  for  defense  by  individual  citizens,  it 
appears  to  me  necessary  to  equip  the  frigates,  and  provide  other  vessels 
of  inferior  force,  to  take  under  convoy  such  merchant  vessels  as  shall 
remain  unarmed. 

The  greater  part  of  the  cruisers  whose  depredations  have  been  most 
injurious  have  been  built  and  some  of  them  partially  equipped  in  the 
United  States.  Although  an  effectual  remedy  may  be  attended  with 
difficulty,  yet  I  have  thought  it  my  duty  to  present  the  subject  gener- 
ally to  your  consideration.  If  a  mode  can  be  devised  by  the  wisdom 
of  Congress  to  prevent  the  resources  of  the  United  States  from  being 
converted  into  the  means  of  annoying  our  trade,  a  great  evil  wall  be 
prevented.  With  the  same  view,  I  think  it  proper  to  mention  that  some 
of  our  citizens  resident  abroad  have  fitted  out  privateers,  and  others 
have  voluntarily  taken  the  command,  or  entered  on  board  of  them,  and 
committed  spoliations  on  the  commerce  of  the  United  States.  Such  un- 
natural and  iniquitous  practices  can  be  restrained  only  by  severe  pun- 
ishments. 

But  besides  a  protection  of  our  commerce  on  the  seas,  I  think  it 
highly  necessary  to  protect  it  at  home,  where  it  is  collected  in  our  most 
important  ports.  The  distance  of  the  United  States  from  Europe  and 
the  well-known  promptitude,  ardor,  and  courage  of  the  people  in  de- 
fense of  their  country  happily  diminish  the  probability  of  invasion. 
Nevertheless,  to  guard  against  sudden  and  predatory  incursions  the 
situation  of  some  of  our  principal  seaports  demands  your  consideration. 
And  as  our  country  is  vulnerable  in  other  interests  besides  those  of  its 
commerce,  you  will  seriously  deliberate  whether  the  means  of  general 
defense  ought  not  to  be  increased  by  an  addition  to  the  regular  artiller}'' 
and  cavalry,  and  by  arrangements  for  forming  a  provisional  army. 

With  the  same  view,  and  as  a  measure  which,  even  in  a  time  of 
universal  peace,  ought  not  to  be  neglected,  I  recommend  to  your  con- 
sideration a  revision  of  the  laws  for  organizing,  arming,  and  disciplin- 
ing the  militia,  to  render  that  natural  and  safe  defense  of  the  country 
efficacious. 

Although  it  is  very  true  that  we  ought  not  to  involve  ourselves  in 
the  political  system  of  Europe,  but  to  keep  ourselves  always  distinct 
and  separate  from  it  if  we  can,  yet  to  effect  this  separation,  early, 
punctual,  and  continual  information  of  the  current  chain  of  events  and 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  31 

of  the  political  projects  in  contemplation  is  no  less  necessary  than  if 
we  were  directly  concerned  in  them.  It  is  necessary,  in  order  to  the 
discovery  of  the  efforts  made  to  draw  us  into  the  vortex,  in  season  to 
make  preparations  against  them.  However  we  may  consider  ourselves, 
the  maritime  and  commercial  powers  of  the  world  will  consider  the 
United  States  of  America  as  forming  a  weight  in  that  balance  of  power 
in  Europe  which  never  can  be  forgotten  or  neglected.  It  would  not 
only  be  against  our  interest,  but  it  would  be  doing  wrong  to  one-half 
of  Europe,  at  least,  if  we  should  voluntarily  throw  ourselves  into  either 
scale.  It  is  a  natural  policy  for  a  nation  that  studies  to  be  neutral  to 
consult  with  other  nations  engaged  in  the  same  studies  and  pursuits. 
At  the  same  time  that  measures  might  be  pursued  with  this  view,  our 
treaties  with  Prussia  and  Sweden,  one  of  which  is  expired  and  the 
other  near  expiring,  might  be  renewed. 


Address  of  the  Senate  to  John  Adams,  President  of  the  United  States^ 

Sir:  The  Senate  of  the  United  States  request  you  to  accept  their 
acknowledgments  for  the  comprehensive  and  interesting  detail  you  have 
given  in  your  speech  to  both  Houses  of  Congress  on  the  existing  state 
of  the  Union. 

While  we  regret  the  necessity  of  the  present  meeting  of  the  Legis- 
lature, we  wish  to  express  our  entire  approbation  of  your  conduct  in 
convening  it  on  this  momentous  occasion. 

The  superintendence  of  our  national  faith,  honor,  and  dignity  being 
in  a  great  measure  constitutionally  deposited  with  the  Executive,  we 
observe  with  singular  satisfaction  the  vigilance,  firmness,  and  prompti- 
tude exhibited  by  you  in  this  critical  state  of  our  public  affairs,  and 
from  thence  derive  an  evidence  and  pledge  of  the  rectitude  and  integrity 
of  your  Administration.  And  we  are  sensible  it  is  an  object  of  primary 
importance  that  each  branch  of  the  Government  should  adopt  a  lan- 
guage and  system  of  conduct  which  shall  be  cool,  just,  and  dispas- 
sionate, but  firm,  explicit,  and  decided. 

We  are  equally  desirous  with  you  to  preserve  peace  and  friendship 
with  all  nations,  and  are  happy  to  be  informed  that  neither  the  honor 
nor  interests  of  the  United  States  forbid  advances  for  securingr  those 


1  Richardson,  Messages,  vol.  1.  p.  239. 


32  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

desirable  objects  by  amicable  negotiation  with  the  French  Republic. 
This  method  of  adjusting  national  differences  is  not  only  the  most  mild, 
but  the  most  rational  and  humane,  and  with  governments  disposed  to  be 
just  can  seldom  fail  of  success  when  fairly,  candidly,  and  sincerely 
used.  If  we  have  committed  errors  and  can  be  made  sensible  of  them, 
we  agree  with  you  in  opinion  that  we  ought  to  correct  them,  and  com- 
pensate the  injuries  which  may  have  been  consequent  thereon;  and  we 
trust  the  French  Republic  will  be  actuated  by  the  same  just  and  benevo- 
lent principles  of  national  policy. 

We  do  therefore  most  sincerely  approve  of  your  determination  to 
promote  and  accelerate  an  accommodation  of  our  existing  differences 
with  that  Republic  by  negotiation,  on  terms  compatible  with  the  rights, 
duties,  interests,  and  honor  of  our  nation.  And  you  may  rest  assured 
of  our  most  cordial  cooperation  so  far  as  it  may  become  necessary  in 
this  pursuit. 

Peace  and  harmony  with  all  nations  is  our  sincere  wish ;  but  such 
being  the  lot  of  humanity  that  nations  will  not  always  reciprocate 
peaceable  dispositions,  it  is  our  firm  belief  that  effectual  measures  of 
defense  will  tend  to  inspire  that  national  self-respect  and  confidence 
at  home  which  is  the  unfailing  source  of  respectability  abroad,  to  check 
aggression  and  prevent  war. 

While  we  are  endeavoring  to  adjust  our  differences  with  the  French 
Republic  by  amicable  negotiation,  the  progress  of  the  war  in  Europe, 
the  depredations  on  our  commerce,  the  personal  injuries  to  our  citizens, 
and  the  general  complexion  of  affairs  prove  to  us  your  vigilant  care  in 
recommending  to  our  attention  effectual  measures  of  defense. 

Those  which  you  recommend,  whether  they  relate  to  external  defense 
by  permitting  our  citizens  to  arm  for  the  purpose  of  repelling  aggres- 
sions on  their  commercial  rights,  and  by  providing  sea  convoys,  or  to 
internal  defense  by  increasing  the  establishments  of  artillery  and  cav- 
alry, by  forming  a  provisional  army,  by  revising  the  militia  laws,  and 
fortifying  more  completely  our  ports  and  harbors,  will  meet  our  con- 
sideration under  the  influence  of  the  same  just  regard  for  the  security, 
interest,  and  honor  of  our  country  which  dictated  your  recommendation. 

Practices  so  unnatural  and  iniquitous  as  those  you  state,  of  our  own 
citizens  converting  their  property  and  personal  exertions  into  the  means 
of  annoying  our  trade  and  injuring  their  fellow-citizens,  deserve  legal 
severity  commensurate  with  their  turpitude. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  33 

Although  the  Senate  beheve  that  the  prosperity  and  happiness  of  our 
country  does  not  depend  on  general  and  extensive  political  connec- 
tions with  European  nations,  yet  we  can  never  lose  sight  of  the  pro- 
priety as  well  as  necessity  of  enabling  the  Executive,  by  sufficient  and 
liberal  supplies,  to  maintain  and  even  extend  our  foreign  intercourse  as 
exigencies  may  require,  reposing  full  confidence  in  the  Executive,  in 
whom  the  Constitution  has  placed  the  powers  of  negotiation. 

We  learn  with  sincere  concern  that  attempts  are  in  operation  to 
alienate  the  affections  of  our  fellow-citizens  from  their  Government. 
Attempts  so  wicked,  wherever  they  exist,  can  not  fail  to  excite  our  ut- 
most abhorrence.  A  government  chosen  by  the  people  for  their  own 
safety  and  happiness,  and  calculated  to  secure  both,  can  not  lose  their 
affections  so  long  as  its  administration  pursues  the  principles  upon 
which  it  was  erected;  and  your  resolution  to  observe  a  conduct  just 
and  impartial  to  all  nations,  a  sacred  regard  to  our  national  engage- 
ments, and  not  to  impair  the  rights  of  our  Government,  contains  prin- 
ciples which  can  not  fail  to  secure  to  your  Administration  the  support 
of  the  National  Legislature  to  render  abortive  every  attempt  to  excite 
dangerous  jealousies  among  us,  and  to  convince  the  world  that  our 
Government  and  your  administration  of  it  can  not  be  separated  from 
the  affectionate  support  of  every  good  citizen.  And  the  Senate  can  not 
suffer  the  present  occasion  to  pass  without  thus  publicly  and  solemnly 
expressing  their  attachment  to  the  Constitution  and  Government  of 
their  country ;  and  as  they  hold  themselves  responsible  to  their  consti- 
tuents, their  consciences,  and  their  God,  it  is  their  determination  by  all 
their  exertions  to  repel  every  attempt  to  alienate  the  affections  of  the 
people  from  the  Government,  so  highly  injurious  to  the  honor,  safety, 
and  independence  of  the  United  States. 

We  are  happy,  since  our  sentiments  on  the  subject  are  in  perfect 
unison  with  yours,  in  this  public  manner  to  declare  that  we  believe 
the  conduct  of  the  Government  has  been  just  and  impartial  to  foreign 
nations,  and  that  those  internal  regulations  which  have  been  estab- 
lished for  the  preservation  of  peace  are  in  their  nature  proper  and 
have  been  fairly  executed. 

And  we  are  equally  happy  in  possessing  an  entire  confidence  in  your 
abilities  and  exertions  in  your  station  to  maintain  untarinshed  the 
honor,  preserve  the  peace,  and  support  the  independence  of  our  coun- 
try, to  acquire  and  establish  which,  in  connection  with  your  fellow- 


34  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

citizens,  has  been  the  virtuous  effort  of  a  principal  part  of  your  life. 

To  aid  you  in  these  arduous  and  honorable  exertions,  as  it  is  our 
duty  so  it  shall  be  our  faithful  endeavor ;  and  we  flatter  ourselves,  sir, 
that  the  proceedings  of  the  present  session  of  Congress  will  manifest 
to  the  world  that  although  the  United  States  love  peace,  they  will  be 
independent;  that  they  are  sincere  in  their  declarations  to  be  just  to  the 
French  and  all  other  nations,  and  expect  the  same  in  return. 

If  a  sense  of  justice,  a  love  of  moderation  and  peace,  shall  influence 
their  councils,  which  we  sincerely  hope  we  shall  have  just  grounds  to 
expect,  peace  and  amity  between  the  United  States  and  all  nations  will 
be  preserved. 

But  if  we  are  so  unfortunate  as  to  experience  injuries  from  any  for- 
eign power,  and  the  ordinary  methods  by  which  differences  are  amica- 
bly adjusted  between  nations  shall  be  rejected,  the  determination  "not 
to  surrender  in  any  manner  the  rights  of  the  Government,"  being  so 
inseparably  connected  with  the  dignity,  interest,  and  independence  of 
our  country,  shall  by  us  be  steadily  and  inviolably  supported. 

Th  :  Jefferson, 
Vice-President  of  the  United  States  and  President  of  the  Senate. 

May  23,  1797. 


Reply  of  the  President^ 

Mr.  Vice-President  and  Gentletnen  of  the  Senate: 

It  would  be  an  affectation  in  me  to  dissemble  the  pleasure  I  feel  on 
receiving  this  kind  address. 

My  long  experience  of  the  wisdom,  fortitude,  and  patriotism  of  the 
Senate  of  the  United  States  enhances  in  my  estimation  the  value  of 
those  obliging  expressions  of  your  approbation  of  my  conduct,  which 
are  a  generous  reward  for  the  past  and  an  affecting  encouragement  to 
constancy  and  perseverance  in  future. 

Our  sentiments  appear  to  be  so  entirely  in  unison  that  I  can  not  but 
believe  them  to  be  the  rational  result  of  the  understandings  and  the 
natural  feelings  of  the  hearts  of  Americans  in  general  on  contemplating 
the  present  state  of  the  nation. 

While  such  principles  and  aft'ections  prevail  they  will  form  an  in- 
dissoluble bond  of  union  and  a  sure  pledge  that  our  country  has  no 


1  Richardson,  Messages,  vol.  1,  p.  242. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  35 

essential  injury  to  apprehend  from  any  portentous  appearances  abroad. 
In  a  humble  reliance  on  Divine  Providence  we  may  rest  assured  that 
while  we  reiterate  with  sincerity  our  endeavors  to  accommodate  all 
our  differences  with  France,  the  independence  of  our  country  can  not 
be  diminished,  its  dignity  degraded,  or  its  glory  tarnished  by  any  nation 
or  combination  of  nations,  whether  friends  or  enemies. 

John  Adams. 
May  24,  1797. 


Address  of  the  House  of  Representatives  to  John  Adams,  President 
of  the  United  States^ 

Sir:  The  interesting  details  of  those  events  which  have  rendered 
the  convention  of  Congress  at  this  time  indispensable  (communicated 
in  your  speech  to  both  Houses)  has  excited  in  us  the  strongest  emo- 
tions. Whilst  we  regret  the  occasion,  we  can  not  omit  to  testify  our 
approbation  of  the  measure,  and  pledge  ourselves  that  no  considera- 
tions of  private  inconvenience  shall  prevent  on  our  part  a  faithful 
discharge  of  the  duties  to  which  we  are  called. 

We  have  constantly  hoped  that  the  nations  of  Europe,  whilst  deso- 
lated by  foreign  wars  or  convulsed  by  intestine  divisions,  would  have 
left  the  United  States  to  enjoy  that  peace  and  tranquillity  to  which 
the  impartial  conduct  of  our  Government  has  entitled  us,  and  it  is  now 
with  extreme  regret  we  find  the  measures  of  the  French  Republic  tend- 
ing to  endanger  a  situation  so  desirable  and  interesting  to  our  country. 

Upon  this  occasion  we  feel  it  our  duty  to  express  in  the  most  ex- 
plicit manner  the  sensations  which  the  present  crisis  has  excited,  and 
to  assure  you  of  our  zealous  cooperation  in  those  measures  which  may 
appear  necessary  for  our  security  or  peace. 

Although  it  is  the  earnest  wish  of  our  hearts  that  peace  may  be 
maintained  with  the  French  Republic  and  with  all  the  world,  yet  w^e 
never  will  surrender  those  rights  which  belong  to  us  as  a  nation ;  and 
whilst  we  view  with  satisfaction  the  wisdom,  dignity,  and  moderation 
which  have  marked  the  measures  of  the  Supreme  Executive  of  our 
country  in  his  attempt  to  remove  by  candid  explanations  the  complaints 
and  jealousies  of  France,  we  feel  the  full  force  of  that  indignity  which 


1  Richardson,  Messages,  vol.  1,  p.  242. 


36  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

has  been  offered  our  country  in  the  rejection  of  its  minister.  No  at- 
tempts to  wound  our  rights  as  a  sovereign  State  will  escape  the  notice 
of  our  constituents.  They  will  be  felt  with  indignation  and  repelled 
with  that  decision  which  shall  convince  the  world  that  we  are  not  a 
degraded  people ;  that  we  can  never  submit  to  the  demands  of  a  foreign 
power  without  examination  and  without  discussion. 

Knowing  as  we  do  the  confidence  reposed  by  the  people  of  the  United 
States  in  their  Government,  we  can  not  hesitate  in  expressing  our 
indignation  at  any  sentiments  tending  to  derogate  from  that  confi- 
dence. Such  sentiments,  wherever  entertained,  serve  to  evince  an  im- 
perfect knowledge  of  the  opinions  of  our  constituents.  An  attempt  to 
separate  the  people  of  the  United  States  from  their  Government  is  an 
attempt  to  separate  them  from  themselves ;  and  although  foreigners 
who  know  not  the  genius  of  our  country  may  have  conceived  the 
project,  and  foreign  emissaries  may  attempt  the  execution,  yet  the 
united  efforts  of  our  fellow-citizens  will  convince  the  world  of  its  im- 
practicability. 

Sensibly  as  we  feel  the  wound  which  has  been  inflicted  by  the  trans- 
actions disclosed  in  your  communications,  yet  we  think  with  you  that 
neither  the  honor  nor  the  interest  of  the  United  States  forbid  the  repe- 
tition of  advances  for  preserving  peace;  we  therefore  receive  with  the 
utmost  satisfaction  your  information  that  a  fresh  attempt  at  negotiation 
will  be  instituted,  and  we  cherish  the  hope  that  a  mutual  spirit  of  con- 
ciliation, and  a  disposition  on  the  part  of  France  to  compensate  for  any 
injuries  which  may  have  been  committed  upon  our  neutral  rights,  and 
on  the  part  of  the  United  States  to  place  France  on  grounds  similar 
to  those  of  other  countries  in  their  relation  and  connection  with  us 
(if  any  inequalities  shall  be  found  to  exist),  will  produce  an  accommo- 
dation compatible  with  the  engagements,  rights,  duties,  and  honor  of 
the  United  States.  Fully,  however,  impressed  with  the  uncertainty  of 
the  result,  we  shall  prepare  to  meet  with  fortitude  any  unfavorable 
events  which  may  occur,  and  to  extricate  ourselves  from  their  conse- 
quences with  all  the  skill  we  possess  and  all  the  efforts  in  our  power. 
Believing  with  you  that  the  conduct  of  the  Government  has  been  just 
and  impartial  to  foreign  nations,  that  the  laws  for  the  preservation  of 
peace  have  been  proper,  and  that  they  have  been  fairly  executed,  the 
Representatives  of  the  people  do  not  hesitate  to  declare  that  they  will 
give  their  most  cordial  support  to  the  execution  of  principles  so  de- 
liberately and  uprightly  established. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  37 

The  many  interesting  subjects  which  you  have  recommended  to  our 
consideration,  and  which  are  so  strongly  enforced  by  this  momentous 
occasion,  will  receive  every  attention  which  their  importance  demands, 
and  we  trust  that,  by  the  decided  and  explicit  conduct  which  will 
govern  our  deliberations,  every  insinuation  will  be  repelled  which  is 
derogatory  to  the  honor  and  independence  of  our  country. 

Permit  us  in  offering  this  address  to  express  our  satisfaction  at  your 
promotion  to  the  first  office  in  the  Government  and  our  entire  confi- 
dence that  the  preeminent  talents  and  patriotism  which  have  placed 
you  in  this  distinguished  situation  will  enable  you  to  discharge  its 
various  duties  with  satisfaction  to  yourself  and  advantage  to  our  com- 
mon country. 

June  2,  1797. 


Reply  of  the  President^ 

Mr.  Speaker  and  Gentlemen  of  the  House  of  Representatives: 

I  receive  with  great  satisfaction  your  candid  approbation  of  the  con- 
vention of  Congress,  and  thank  you  for  your  assurances  that  the  inter- 
esting subjects  recommended  to  your  consideration  shall  receive  the 
attention  which  their  importance  demands,  and  that  your  cooperation 
may  be  expected  in  those  measures  which  may  appear  necessary  for 
our  security  or  peace. 

The  declarations  of  the  Representatives  of  this  nation  of  their  satis- 
faction at  my  promotion  to  the  first  office  in  this  Government  and  of 
their  confidence  in  my  sincere  endeavors  to  discharge  the  various  duties 
of  it  with  advantage  to  our  common  country  have  excited  my  most 
grateful  sensibility. 

I  pray  you,  gentlemen,  to  believe  and  to  communicate  such  assurance 
to  our  constituents  that  no  event  which  I  can  foresee  to  be  attainable 
by  any  exertions  in  the  discharge  of  my  duties  can  afford  me  so  much 
cordial  satisfaction  as  to  conduct  a  negotiation  with  the  French  Re- 
public to  a  removal  of  prejudices,  a  correction  of  errors,  a  dissipation 
of  umbrages,  an  accommodation  of  all  dift'erences,  and  a  restoration  of 
harmony  and  affection  to  the  mutual  satisfaction  of  both  nations.  And 
whenever  the  legitimate  organs  of  intercourse  shall  be  restored  and  the 
real  sentiments  of  the  two  Governments  can  be  candidly  communicated 


1  Richardson,  Messages,  vol.  1,  p.  244. 


38  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

to  each  other,  although  strongly  impressed  with  the  necessity  of  col- 
lecting ourselves  into  a  manly  posture  of  defense,  I  nevertheless  en- 
tertain an  encouraging  confidence  that  a  mutual  spirit  of  conciliation,  a 
disposition  to  compensate  injuries  and  accommodate  each  other  in  all 
our  relations  and  connections,  will  produce  an  agreement  to  a  treaty 
consistent  with  the  engagements,  rights,  duties,  and  honor  of  both 
nations. 

John  Adams. 
June  3,  1797. 


FIRST    ANNUAL    ADDRESS^ 

United  States,  November  22,  1797. 
Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives: 

Although  I  can  not  yet  congratulate  you  on  the  reestablishment  of 
peace  in  Europe  and  the  restoration  of  security  to  the  persons  and  prop- 
erties of  our  citizens  from  injustice  and  violence  at  sea,  we  have, 
nevertheless,  abundant  cause  of  gratitude  to  the  source  of  benevolence 
and  influence  for  interior  tranquillity  and  personal  security,  for  propi- 
tious seasons,  prosperous  agriculture,  productive  fisheries,  and  general 
improvements,  and,  above  all,  for  a  rational  spirit  of  civil  and  religious 
liberty  and  a  calm  but  steady  determination  to  support  our  sovereignty, 
as  well  as  our  moral  and  our  religious  principles,  against  all  open  and 
secret  attacks. 

Our  envoys  extraordinary  to  the  French  Republic  embarked — one 
in  July,  the  other  early  in  August — to  join  their  colleague  in  Holland. 
I  have  received  intelligence  of  the  arrival  of  both  of  them  in  Holland, 
from  whence  they  all  proceeded  on  their  journeys  to  Paris  within  a  few 
days  of  the  19th  of  September.  Whatever  may  be  the  result  of  this 
mission,  I  trust  that  nothing  will  have  been  omitted  on  my  part  to 
conduct  the  negotiation  to  a  successful  conclusion,  on  such  equitable 
terms  as  may  be  compatible  with  the  safety,  honor,  and  interest  of  the 
United  States.  Nothing,  in  the  meantime,  will  contribute  so  much  to 
the  preservation  of  peace  and  the  attainment  of  justice  as  a  manifesta- 
tion of  that  energy  and  unanimity  of  which  on  many  former  occasions 
the  people  of  the  United  States  have  given  such  memorable  proofs, 


1  Richardson,  Messages,  vol.  1,  p.  250. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  39 

and  the  exertion  of  those  resources  for  national  defense  which  a  benefi- 
cent Providence  has  kindly  placed  within  their  power. 

It  may  be  confidently  asserted  that  nothing  has  occurred  since  the 
adjournment  of  Congress  which  renders  inexpedient  those  precaution- 
ary measures  recommended  by  me  to  the  consideration  of  the  two 
Houses  at  the  opening  of  your  late  extraordinary  session.  If  that  sys- 
tem was  then  prudent,  it  is  more  so  now,  as  increasing  depredations 
strengthen  the  reasons  for  its  adoption. 

Indeed,  whatever  may  be  the  issue  of  the  negotiation  with  France, 
and  whether  the  war  in  Europe  is  or  is  not  to  continue,  I  hold  it  most 
certain  that  permanent  tranquillity  and  order  will  not  soon  be  ob- 
tained. The  state  of  society  has  so  long  been  disturbed,  the  sense  of 
moral  and  religious  obligations  so  much  weakened,  public  faith  and 
national  honor  have  been  so  impaired,  respect  to  treaties  has  been  so 
diminished,  and  the  law  of  nations  has  lost  so  much  of  its  force,  while 
pride,  ambition,  avarice,  and  violence  have  been  so  long  unrestrained, 
there  remains  no  reasonable  ground  on  which  to  raise  an  expectation 
that  a  commerce  without  protection  or  defense  will  not  be  plundered. 

The  commerce  of  the  United  States  is  essential,  if  not  to  their  exist- 
ence, at  least  to  their  comfort,  their  growth,  prosperity,  and  happiness. 
The  genius,  character,  and  habits  of  the  people  are  highly  commercial. 
Their  cities  have  been  formed  and  exist  upon  commerce.  Our  agricul- 
ture, fisheries,  arts,  and  manufactures  are  connected  with  and  depend 
upon  it.  In  short,  commerce  has  made  this  country  what  it  is,  and  it 
can  not  be  destroyed  or  neglected  without  involving  the  people  in 
poverty  and  distress.  Great  numbers  are  directly  and  solely  sup- 
ported by  navigation.  The  faith  of  society  is  pledged  for  the  preserva- 
tion of  the  rights  of  commercial  and  seafaring  no  less  than  of  the  other 
citizens.  Under  this  view  of  our  affairs,  I  should  hold  myself  guilty 
of  a  neglect  of  duty  if  I  forbore  to  recommend  that  we  should  make 
every  exertion  to  protect  our  commerce  and  to  place  our  country  in  a 
suitable  posture  of  defense  as  the  only  sure  means  of  preserving  both. 


Address  of  the  Senate  to  John  Adams,  President  of  the  United  States^ 

The  President  of  the  United  States  : 

It  would  have  given  us  much  pleasure  to  have  received  your  con- 


1  Richardson,  Messages,  vol.  1,  p.  254. 


40  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

gratulations  on  the  reestablishment  of  peace  in  Europe  and  the  restora- 
tion of  security  to  the  persons  and  property  of  our  citizens  from  in- 
justice and  violence  at  sea ;  but  though  these  events,  so  desirable  to  our 
country  and  the  world,  have  not  taken  place,  yet  we  have  abundant 
cause  of  gratitude  to  the  Great  Disposer  of  Human  Events  for  interior 
tranquillity  and  personal  security,  for  propitious  seasons,  prosperous 
agriculture,  productive  fisheries,  and  general  improvement,  and,  above 
all,  for  a  rational  spirit  of  civil  and  religious  liberty  and  a  calm  but 
steady  determination  to  support  our  sovereignty  against  all  open  and 
secret  attacks. 

We  learn  with  satisfaction  that  our  envoys  extraordinary  to  the 
French  Republic  had  safely  arrived  in  Europe  and  were  proceeding  to 
the  scene  of  negotiation,  and  whatever  may  be  the  result  of  the  mis- 
sion, we  are  perfectly  satisfied  that  nothing  on  your  part  has  been 
omitted  which  could  in  any  way  conduce  to  a  successful  conclusion  of 
the  negotiation  upon  terms  compatible  with  the  safety,  honor,  and  in- 
terest of  the  United  States;  and  we  are  fully  convinced  that  in  the 
meantime  a  manifestation  of  that  unanimity  and  energy  of  which  the 
people  of  the  United  States  have  given  such  memorable  proofs  and  a 
proper  exertion  of  those  resources  of  national  defense  which  we  pos- 
sess will  essentially  contribute  to  the  preservation  of  peace  and  the 
attainment  of  justice. 

We  think,  sir,  with  you  that  the  commerce  of  the  United  States  is 
essential  to  the  growth,  comfort,  and  prosperity  of  our  country,  and 
that  the  faith  of  society  is  pledged  for  the  preservation  of  the  rights 
of  commercial  and  seafaring  no  less  than  of  other  citizens.  And  even 
if  our  negotiation  with  France  should  terminate  favorably  and  the 
war  in  Europe  cease,  yet  the  state  of  society  which  unhappily  prevails 
in  so  great  a  portion  of  the  world  and  the  experience  of  past  times 
under  better  circumstances  unite  in  warning  us  that  a  commerce  so 
extensive  and  which  holds  out  so  many  temptations  to  lawless  plun- 
derers can  never  be  safe  without  protection ;  and  we  hold  ourselves 
obliged  by  every  tie  of  duty  which  binds  us  to  our  constituents  to  pro- 
mote and  concur  in  such  measures  of  marine  defense  as  may  convince 
our  merchants  and  seamen  that  their  rights  are  not  sacrificed  nor  their 
injuries  forgotten. 

Nov.  27,  1797. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  41 

Reply  of  tJie  President^ 

United  States,  November  28,  1797. 
Gentlemen  of  the  Senate: 

I  thank  you  for  this  address. 

When,  after  the  most  laborious  investigation  and  serious  reflection, 
without  partial  considerations  or  personal  motives,  measures  have  been 
adopted  or  recommended,  I  can  receive  no  higher  testimony  of  their 
rectitude  than  the  approbation  of  an  assembly  so  independent,  patriotic, 
and  enlightened  as  the  Senate  of  the  United  States. 

Nothing  has  afforded  me  more  entire  satisfaction  than  the  coincidence 
of  your  judgment  with  mine  in  the  opinion  of  the  essential  importance 
of  our  commerce  and  the  absolute  necessity  of  a  maritime  defense. 
What  is  it  that  has  drawn  to  Europe  the  superfluous  riches  of  the 
three  other  quarters  of  the  globe  but  a  marine?  What  is  it  that  has 
drained  the  wealth  of  Europe  itself  into  the  coffers  of  two  or  three  of 
its  principal  commercial  powers  but  a  marine? 

The  world  has  furnished  no  example  of  a  flourishing  commerce 
without  a  maritime  protection,  and  a  moderate  knowledge  of  man  and 
his  history  will  convince  anyone  that  no  such  prodigy  ever  can  arise. 
A  mercantile  marine  and  a  militar}^  marine  must  grow  up  together; 
one  can  not  long  exist  without  the  other. 

John  Adams. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 

the  United  States^ 

In  lamenting  the  increase  of  the  injuries  offered  to  the  persons  and 
property  of  our  citizens  at  sea  we  gratefully  acknowledge  the  continu- 
ance of  interior  tranquillity  and  the  attendant  blessings  of  which  you 
remind  us  as  alleviations  of  these  fatal  effects  of  injustice  and  violence. 

Whatever  may  be  the  result  of  the  mission  to  the  French  Republic, 
your  early  and  uniform  attachment  to  the  interest  of  our  country,  your 
important  services  in  the  struggle  for  its  independence,  and  your  un- 
ceasing exertions  for  its  welfare  afford  no  room  to  doubt  of  the  sin- 
cerity of  your  efforts  to  conduct  the  negotiation  to  a  successful  conclu- 
sion on  such  terms  as  may  be  compatible  with  the  safet}-,  honor,  and 


^  Richardson,  Messages,  vol.  1,  p.  256. 
2  Ibid.  p.  257. 


42  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

interest  of  the  United  States.  We  have  also  a  firm  reliance  upon  the 
energy  and  unanimity  of  the  people  of  these  States  in  the  assertion  of 
their  rights,  and  on  their  determination  to  exert  upon  all  proper  oc- 
casions their  ample  resources  in  providing  for  the  national  defense. 

The  importance  of  commerce  and  its  beneficial  influence  upon  agri- 
culture, arts,  and  manufactures  have  been  verified  in  the  growth  and 
prosperity  of  our  country.  It  is  essentially  connected  with  the  other 
great  interests  of  the  community ;  they  must  flourish  and  decline  to- 
gether; and  while  the  extension  of  our  navigation  and  trade  naturally 
excites  the  jealousy  and  tempts  the  avarice  of  other  nations,  we  are 
firmly  persuaded  that  the  numerous  and  deserving  class  of  citizens 
engaged  in  these  pursuits  and  dependent  on  them  for  their  subsistence 
has  a  strong  and  indisputable  claim  to  our  support  and  protection. 

Nov.  28,  1797. 


Reply  of  the  President^ 

United  States^  November  ^p,  //p/. 
Gentlemen  of  the  House  of  Representatives : 

I  receive  this  address  from  the  House  of  Representatives  of  the 
United  States  with  peculiar  pleasure. 

Your  approbation  of  the  meeting  of  Congress  in  this  city  and  of 
those  other  measures  of  the  Executive  authority  of  Government  com- 
municated in  my  address  to  both  Houses  at  the  opening  of  the  session 
afford  me  great  satisfaction,  as  the  strongest  desire  of  my  heart  is  to 
give  satisfaction  to  the  people  and  their  Representatives  by  a  faithful 
discharge  of  my  duty. 

The  confidence  you  express  in  the  sincerity  of  my  endeavors  and  in 
the  unanimity  of  the  people  does  me  much  honor  and  gives  me  great 

joy. 

I  rejoice  in  that  harmony  which  appears  in  the  sentiments  of  all  the 
branches  of  the  Government  on  the  importance  of  our  commerce  and 
our  obligations  to  defend  it,  as  well  as  in  all  the  other  subjects  recom- 
mended to  your  consideration,  and  sincerely  congratulate  you  and  our 
fellow-citizens  at  large  on  this  appearance,  so  auspicious  to  the  honor, 
interest,  and  happiness  of  the  nation. 


1  Richardson,  Messages,  vol.  1.  p,  258. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  43 

SECOND  ANNUAL  ADDRESS^ 

United  States,  December  8,  1798. 

Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives: 

The  course  of  the  transactions  in  relation  to  the  United  States  and 
France  which  have  come  to  my  knowledge  during  your  recess  will  be 
made  the  subject  of  a  future  communication.  That  communication 
will  confirm  the  ultimate  failure  of  the  measures  which  have  been 
taken  by  the  Government  of  the  United  States  toward  an  amicable  ad- 
justment of  differences  with  that  power.  You  will  at  the  same  time 
perceive  that  the  French  Government  appears  solicitous  to  impress  the 
opinion  that  it  is  averse  to  a  rupture  with  this  country,  and  that  it 'has 
in  a  qualified  manner  declared  itself  willing  to  receive  a  minister  from 
the  United  States  for  the  purpose  of  restoring  a  good  understanding. 
It  is  unfortunate  for  professions  of  this  kind  that  they  should  be  ex- 
pressed in  terms  which  may  countenance  the  inadmissible  pretension 
of  a  right  to  prescribe  the  qualifications  which  a  minister  from  the 
United  States  should  possess,  and  that  while  France  is  asserting  the 
existence  of  a  disposition  on  her  part  to  conciliate  with  sincerity  the 
differences  which  have  arisen,  the  sincerity  of  a  like  disposition  on  the 
part  of  the  United  States,  of  which  so  many  demonstrative  proofs  have 
been  given,  should  even  be  indirectly  questioned.  It  is  also  worthy  of 
observation  that  the  decree  of  the  Directory  alleged  to  be  intended  to 
restrain  the  depredations  of  French  cruisers  on  our  commerce  has  not 
given,  and  can  not  give,  any  relief.  It  enjoins  them  to  conform  to  all 
the  laws  of  France  relative  to  cruising  and  prizes,  while  these  laws  are 
themselves  the  sources  of  the  depredations  of  which  we  have  so  long,  so 
justly,  and  so  fruitlessly  complained. 

The  law  of  France  enacted  in  January  last,  which  subjects  to  capture 
and  condemnation  neutral  vessels  and  their  cargoes  if  any  portion  of 
the  latter  are  of  British  fabric  or  produce,  although  the  entire  property 
belong  to  neutrals,  instead  of  being  rescinded  has  lately  received  a 
confirmation  by  the  failure  of  a  proposition  for  its  repeal.  While  this 
law,  which  is  an  unequivocal  act  of  war  on  the  commerce  of  the  nations 
it  attacks,  continues  in  force  those  nations  can  see  in  the  French  Gov- 
ernment only  a  power  regardless  of  their  essential  rights,  of  their  inde- 
pendence and  sovereignty;  and  if  they  possess  the  means  they  can 
reconcile  nothing  with  their  interest  and  honor  but  a  firm  resistance. 


1  Richardson,  Messages,  vol.  1.  p.  271. 


44  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

Hitherto,  therefore,  nothing  is  discoverable  in  the  conduct  of  France 
which  ought  to  change  or  relax  our  measures  of  defense.  On  the  con- 
trary, to  extend  and  invigorate  them  is  our  true  policy.  We  have  no 
reason  to  regret  that  these  measures  have  been  thus  far  adopted  and 
pursued,  and  in  proportion  as  we  enlarge  our  view  of  the  portentous 
and  incalculable  situation  of  Europe  we  shall  discover  new  and  cogent 
motives  for  the  full  development  of  our  energies  and  resources. 

But  in  demonstrating  by  our  conduct  that  we  do  not  fear  war  in  the 
necessary  protection  of  our  rights  and  honor  we  shall  give  no  room  to 
infer  that  we  abandon  the  desire  of  peace.  An  efficient  preparation  for 
war  can  alone  insure  peace.  It  is  peace  that  we  have  uniformly  and 
perseveringly  cultivated,  and  harmony  between  us  and  France  may  be 
restored  at  her  option.  But  to  send  another  minister  without  more 
determinate  assurances  that  he  would  be  received  would  be  an  act  of 
humiliation  to  which  the  United  States  ought  not  to  submit.  It  must 
therefore  be  left  with  France  (if  she  is  indeed  desirous  of  accommoda- 
tion) to  take  the  requisite  steps.  The  United  States  will  steadily  ob- 
serve the  maxims  by  which  they  have  hither  been  governed.  They  will 
respect  the  sacred  rights  of  embassy ;  and  with  a  sincere  disposition  on 
the  part  of  France  to  desist  from  hostility,  to  make  reparation  for  the 
injuries  heretofore  inflicted  on  our  commerce,  and  to  do  justice  in 
future,  there  will  be  no  obstacle  to  the  restoration  of  a  friendly  inter- 
course. In  making  to  you  this  declaration  I  give  a  pledge  to  France 
and  the  world  that  the  Executive  authority  of  this  country  still  adheres 
to  the  humane  and  pacific  policy  which  has  invariably  governed  its  pro- 
ceedings, in  conformity  with  the  wishes  of  the  other  branches  of  the 
Government  and  of  the  people  of  the  United  States.  But  considering 
the  late  manifestations  of  her  policy  toward  foreign  nations,  I  deem  it  a 
duty  deliberately  and  solemnly  to  declare  my  opinion  that  whether  we 
negotiate  with  her  or  not,  vigorous  preparations  for  war  will  be  alike 
indispensable.  These  alone  will  give  to  us  an  equal  treaty  and  insure  it'? 
observance. 

Among  the  measures  of  preparation  which  appear  expedient,  I  take 
the  liberty  to  recall  your  attention  to  the  naval  establishment.  The 
beneficial  effects  of  the  small  naval  armament  provided  under  the  acts 
of  the  last  session  are  known  and  acknowledged.  Perhaps  no  country 
ever  experienced  more  sudden  and  remarkable  advantages  from  any 
measure  of  policy  than  we  have  derived  from  the  arming  for  our  mari- 
time protection  and  defense.    We  ought  without  loss  of  time  to  lav  the 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  45 

foundation  for  an  increase  of  our  Navy  to  a  size  sufficient  to  guard  our 
coast  and  protect  our  trade.  Such  a  naval  force  as  it  is  doubtless  in 
the  power  of  the  United  States  to  create  and  maintain  would  also  af- 
ford to  them  the  best  means  of  general  defense  by  facilitating  the  safe 
transportation  of  troops  and  stores  to  every  part  of  our  extensive  coast. 
To  accomplish  this  important  object,  a  prudent  foresight  requires  tliat 
systematical  measures  be  adopted  for  procuring  at  all  times  the  requisite 
timber  and  other  supplies.  In  what  manner  this  shall  be  done  I  leave 
to  your  consideration. 


Address  of  the  Senate  to  John  Adams,  President  of  the  United  States'^ 

The  President  of  the  United  States: 

Although  we  have  sincerely  wished  that  an  adjustment  of  our  differ- 
ences with  the  Republic  of  France  might  be  effected  on  safe  and  honor- 
able terms,  yet  the  information  you  have  given  us  of  the  ultimate  fail- 
ure of  the  negotiation  has  not  surprised  us.  In  the  general  conduct 
of  that  Republic  we  have  seen  a  design  of  universal  influence  incom- 
patible with  the  self-government  and  destructive  of  the  independence 
of  other  States.  In  its  conduct  toward  these  United  States  we  have 
seen  a  plan  of  hostility  pursued  with  unremitted  constancy,  equally  dis- 
regarding the  obligations  of  treaties  and  the  rights  of  individuals.  We 
have  seen  two  embassies,  formed  for  the  purpose  of  mutual  explana- 
tions and  clothed  with  the  most  extensive  and  liberal  powers,  dismissed 
without  recognition  and  even  without  a  hearing.  The  Government  of 
France  has  not  only  refused  to  repeal  but  has  recently  enjoined  the 
observance  of  its  former  edict  respecting  merchandise  of  British  fabric 
or  produce  the  property  of  neutrals,  by  which  the  interruption  of  our 
lawful  commerce  and  the  spoliation  of  the  property  of  our  citizens  have 
again  received  a  public  sanction.  These  facts  indicate  no  change  of 
system  or  disposition ;  they  speak  a  more  intelligible  language  than 
professions  of  solicitude  to  avoid  a  rupture,  however  ardently  made. 
But  if,  after  the  repeated  proofs  we  have  given  of  a  sincere  desire 
for  peace,  these  professions  should  be  accompanied  by  insinuations  im- 
plicating the  integrity  with  which  it  has  been  pursued ;  if,  neglecting 
and  passing  by  the  constitutional  and  authorized  agents  of  the  Govern- 
ment, they  are  made  through  the  medium  of  individuals  without  public 


1  Richardson,  Messages,  vol.  1,  p.  275. 


46  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

character  or  authority,  and,  above  all,  if  they  carry  with  them  a  claim 
to  prescribe  the  political  qualifications  of  the  minister  of  the  United 
States  to  be  employed  in  the  negotiation,  they  are  not  entitled  to  atten- 
tion or  consideration,  but  ought  to  be  regarded  as  designed  to  separate 
the  people  from  their  Government  and  to  bring  about  by  intrigue  that 
which  open  force  could  not  effect. 

We  are  of  opinion  with  you,  sir,  that  there  has  nothing  yet  been  dis- 
covered in  the  conduct  of  France  which  can  justify  a  relaxation  of  the 
means  of  defense  adopted  during  the  last  session  of  Congress,  the 
happy  result  of  which  is  so  strongly  and  generally  marked.  If  the 
force  by  sea  and  land  which  the  existing  laws  authorize  should  be 
judged  inadequate  to  the  public  defense,  we  will  perform  the  indis- 
pensable duty  of  bringing  forward  such  other  acts  as  will  effectually 
call  forth  the  resources  and  force  of  our  country. 

A  steady  adherence  to  this  wise  and  manly  policy,  a  proper  direction 
of  the  noble  spirit  of  patriotism  which  has  arisen  in  our  country,  and 
which  ought  to  be  cherished  and  invigorated  by  every  branch  of  the 
Government,  will  secure  our  liberty  and  independence  against  all  open 
and  secret  attacks. 

We  enter  on  the  business  of  the  present  session  with  an  anxious 
solicitude  for  the  public  good,  and  shall  bestow  that  consideration  on 
the  several  objects  pointed  out  in  your  communication  which  they  re- 
spectively merit. 

Your  long  and  important  services,  your  talents  and  firmness,  so 
often  displayed  in  the  most  trying  times  and  most  critical  situations, 
afford  a  sure  pledge  of  a  zealous  cooperation  in  every  measure  neces- 
sary to  secure  us  justice  and  respect. 

John  Laurance, 
President  of  the  Senate  pro  tempore. 

December  11,  1798. 


Reply  of  the  President^ 

December  12,  1798. 
To  the  Senate  of  the  United  States: 

Gentlemen:  I  thank  you  for  this  address,  so  conformable  to  the 
spirit  of  our  Constitution  and  the  established  character  of  the  Senate 
of  the  United  States  for  wisdom,  honor,  and  virtue. 


1  Richardson,  Messages,  vol.  1,  p.  277. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  47 

I  have  seen  no  real  evidence  of  any  change  of  system  or  disposition 
in  the  French  Repubhc  toward  the  United  States.  Ahhough  the  offi- 
cious interference  of  individuals  without  pubhc  character  or  authority 
is  not  entitled  to  any  credit,  yet  it  deserves  to  be  considered  whether 
that  temerity  and  impertinence  of  individuals  affecting  to  interfere  in 
public  affairs  between  France  and  the  United  States,  whether  by  their 
secret  correspondence  or  otherwise,  and  intended  to  impose  upon  the 
people  and  separate  them  from  their  Government,  ought  not  to  be  in- 
quired into  and  corrected, 

I  thank  you,  gentlemen,  for  your  assurances  that  you  will  bestow 
that  consideration  on  the  several  objects  pointed  out  in  my  communi- 
cation v/hich  they  respectively  merit. 

If  I  have  participated  in  that  understanding,  sincerity,  and  constancy 
which  have  been  displayed  by  my  fellow-citizens  and  countrymen  in 
the  most  trying  times  and  critical  situations,  and  fulfilled  my  duties  to 
them,  I  am  happy.  The  testimony  of  the  Senate  of  the  United  States 
in  my  favor  is  an  high  and  honorable  reward  which  receives,  as  it 
merits,  my  grateful  acknowledgments.  My  zealous  cooperation  in 
measures  necessary  to  secure  us  justice  and  consideration  may  be  al- 
w^ays  depended  on. 

John  Adams. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 

the  United  States^ 

John  Adams, 

President  of  the  United  States. 
Desirous  as  we  are  that  all  causes  of  hostility  may  be  removed  by 
the  amicable  adjustment  of  national  differences,  we  learn  with  satis- 
faction that  in  pursuance  of  our  treaties  with  Spain  and  with  Great 
Britain  advances  have  been  made  for  definitively  settling  the  contro- 
versies relative  to  the  southern  and  northeastern  limits  of  the  United 
States.  With  similar  sentiments  have  we  received  your  information 
that  the  proceedings  under  commissions  authorized  by  the  same  treaties 
afford  to  a  respectable  portion  of  our  citizens  the  prospect  of  a  final 
decision  on  their  claims  for  maritime  injuries  committed  by  subjects  of 
those  powers. 


1  Richardson,  Messages,  vol.  1,  p.  277. 


48  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

It  would  be  the  theme  of  mutual  felicitation  were  we  assured  of 
experiencing  similar  moderation  and  justice  from  the  French  Republic, 
between  which  and  the  United  States  differences  have  unhappily 
arisen;  but  this  is  denied  us  by  the  ultimate  failure  of  the  measures 
which  have  been  taken  by  this  Government  toward  an  amicable  adjust- 
ment of  those  differences  and  by  the  various  inadmissible  pretensions 
on  the  part  of  that  nation. 

The  continuing  in  force  the  decree  of  January  last,  to  which  you 
have  more  particularly  pointed  our  attention,  ought  of  itself  to  be  con- 
sidered as  demonstrative  of  the  real  intentions  of  the  French  Govern- 
ment. That  decree  proclaims  a  predatory  warfare  against  the  un- 
questionable rights  of  neutral  commerce  which  with  our  means  of  de- 
fense our  interest  and  our  honor  command  us  to  repel.  It  therefore 
now  becomes  the  United  States  to  be  as  determined  in  resistance  as 
they  have  been  patient  in  suffering  and  condescending  in  negotiation. 
While  those  who  direct  the  affairs  of  France  persist  in  the  enforce- 
ment of  decrees  so  hostile  to  our  essential  rights,  their  conduct  forbids 
us  to  confide  in  any  of  their  professions  of  amity. 

As,  therefore,  the  conduct  of  France  hitherto  exhibits  nothing  which 
ought  to  change  or  relax  our  measures  of  defense,  the  policy  of  extend- 
ing and  invigorating  those  measures  demands  our  sedulous  attention. 
The  sudden  and  remarkable  advantages  which  this  country  has  experi- 
enced from  a  small  naval  armament  sufficiently  prove  the  utility  of  its 
establishment.  As  it  respects  the  guarding  of  our  coast,  the  protection 
of  our  trade,  and  the  facility  of  safely  transporting  the  means  of  terri- 
torial defense  to  every  part  of  our  maritime  frontier,  an  adequate  naval 
force  must  be  considered  as  an  important  object  of  national  policy. 
Nor  do  we  hesitate  to  adopt  the  opinion  that,  whether  negotiations  with 
France  are  resumed  or  not,  vigorous  preparations  for  war  will  be  alike 
indispensable. 

In  this  conjuncture  of  affairs,  while  with  you  we  recognize  our  abun- 
dant cause  of  gratitude  to  the  Supreme  Disposer  of  Events  for  the  or- 
dinary blessings  of  Providence,  we  regard  as  of  high  national  impor- 
tance the  manifestation  in  our  country  of  a  magnanimous  spirit  of  re- 
sistance to  foreign  domination.  This  spirit  merits  to  be  cherished  and 
invigorated  by  every^  branch  of  Government  as  the  estimable  pledge  of 
national  prosperity  and  glory. 

Disdaining  a  reliance  on  foreign  protection,  wanting  no  foreign  guar- 
anty of  our  liberties,  resolving  to  maintain  our  national  independence 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  49 

against  every  attempt  to  despoil  us  of  this  inestimable  treasure,  we 
confide  under  Providence  in  the  patriotism  and  energies  of  the  people 
of  these  United  States  for  defeating  the  hostile  enterprises  of  any 
foreign  pov^er. 

To  adopt  with  prudent  foresight  such  systematical  measures  as  may 
be  expedient  for  calling  forth  those  energies  wherever  the  national 
exigencies  may  require,  whether  on  the  ocean  or  on  our  own  territory, 
and  to  rconcile  with  the  proper  security  of  revenue  the  convenience 
of  mercantile  enterprise,  on  which  so  great  a  proportion  of  the  public 
resources  depends,  are  objects  of  moment  which  shall  be  duly  regarded 
in  the  course  of  our  deliberations. 

Fully  as  we  accord  with  you  in  the  opinion  that  the  United  States 
ought  not  to  submit  to  the  humiliation  of  sending  another  minister  to 
France  without  previous  assurances  sufficiently  determinate  that  he  will 
be  duly  accredited,  we  have  heard  with  cordial  approbation  the  declara- 
tion of  your  purpose  steadily  to  observe  those  maxims  of  humane  and 
pacific  policy  by  which  the  United  States  have  hitherto  been  governed. 
While  it  is  left  with  France  to  take  the  requisite  steps  for  accommoda- 
tion, it  is  worthy  the  Chief  Magistrate  of  a  free  people  to  make  known 
to  the  world  that  justice  on  the  part  of  France  will  annihilate  every 
obstacle  to  the  restoration  of  a  friendly  intercourse,  and  that  the  Execu- 
tive authority  of  this  country  will  respect  the  sacred  rights  of  embassy. 
At  the  same  time,  the  wisdom  and  decision  which  have  characterized 
your  past  Administration  assure  us  that  no  illusory  professions  will 
seduce  you  into  any  abandonment  of  the  rights  which  belong  to  the 
United  States  as  a  free  and  independent  nation. 

December  13,  1798. 


Reply  of  the  President^ 

December  14,  1798. 
To  the  House  of  Representatives  of  the  United  States  of  America. 

Gentlemen  :  My  sincere  acknowledgments  are  due  to  the  House  of 
Representatives  of  the  United  States  for  this  excellent  address  so  con- 
sonant to  the  character  of  representatives  of  a  great  and  free  people. 
The  judgment  and  feelings  of  a  nation.  I  believe,  were  never  more 
truly  expressed  by  their  representatives  than  those  of  our  constituents 


1  Richardson,  Messages,  vol.  1,  p.  280. 


50  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

by  your  decided  declaration  that  with  our  means  of  defense  our  interest 
and  honor  command  us  to  repel  a  predatory  warfare  against  the  un- 
questionable rights  of  neutral  commerce;  that  it  becomes  the  United 
States  to  be  as  determined  in  resistance  as  they  have  been  patient  in 
suffering  and  condescending  in  negotiation ;  that  while  those  who  direct 
the  affairs  of  France  persist  in  the  enforcement  of  decrees  so  hostile 
to  our  essential  rights  their  conduct  forbids  us  to  confide  in  any  of 
their  professions  of  amity ;  that  an  adequate  naval  force  must  be  con- 
sidered as  an  important  object  of  national  policy,  and  that,  whether 
negotiations  with  France  are  resumed  or  not,  vigorous  preparations 
for  war  will  be  alike  indispensable. 

The  generous  disdain  you  so  coolly  and  deliberately  express  of  a  re- 
liance on  foreign  protection,  wanting  no  foreign  guaranty  of  our  liber- 
ties, resolving  to  maintain  our  national  independence  against  every  at- 
tempt to  despoil  us  of  this  inestimable  treasure,  will  meet  the  full 
approbation  of  every  sound  understanding  and  exulting  applauses  from 
the  heart  of  every  faithful  American. 

I  thank  you,  gentlemen,  for  your  candid  approbation  of  my  senti- 
ments on  the  subject  of  negotiation  and  for  the  declaration  of  your 
opinion  that  the  policy  of  extending  and  invigorating  our  measures 
of  defense  and  the  adoption  with  prudent  foresight  of  such  systematical 
measures  as  may  be  expedient  for  caUing  forth  the  energies  of  our 
country  wherever  the  national  exigencies  may  require,  whether  on  the 
ocean  or  on  our  own  territory,  will  demand  your  sedulous  attention. 

At  the  same  time,  I  take  the  liberty  to  assure  you  it  shall  be  my 
vigilant  endeavor  that  no  illusory  professions  shall  seduce  me  into 
any  abandonment  of  the  rights  which  belong  to  the  United  States  as  a 
free  and  independent  nation. 

John  Adams. 


THIRD   ANNUAL   ADDRESS^ 

United  States,  December  j,  1799. 
Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives  : 
Persevering  in  the  pacific  and  humane  policy  which  had  been  in- 
variably professed  and  sincerely  pursued  by  the  Executive  authority 
of  the  United  States,  when  indications  were  made  on  the  part  of  the 

1  Richardson,  Messages,  vol.  1,  pp.  289-290. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  51 

French  Republic  of  a  disposition  to  accommodate  the  existing  differ- 
ences between  the  two  countries,  I  felt  it  to  be  my  duty  to  prepare  for 
meeting  their  advances  by  a  nomination  of  ministers  upon  certain  con- 
ditions which  the  honor  of  our  country  dictated,  and  which  its  modera- 
tion had  given  it  a  right  to  prescribe.  The  assurances  which  were 
required  of  the  French  Government  previous  to  the  departure  of  our 
envoys  have  been  given  through  their  minister  of  foreign  relations, 
and  I  have  directed  them  to  proceed  on  their  mission  to  Paris.  They 
have  full  power  to  conclude  a  treaty,  subject  to  the  constitutional  ad- 
vice and  consent  of  the  Senate.  The  characters  of  these  gentlemen  are 
sure  pledges  to  their  country  that  nothing  incompatible  with  its  honor 
or  interest,  nothing  inconsistent  with  our  obligations  of  good  faith  or 
friendship  to  any  other  nation,  will  be  stipulated. 

John  Adams. 


Address  of  the  Senate  to  John  Adams,  President  of  the  United  States^ 

The  President  of  the  United  States  : 

When  we  reflect  upon  the  uncertainty  of  the  result  of  the  late  mis- 
sion to  France  and  upon  the  uncommon  nature,  extent,  and  aspect  of 
the  war  now  raging  in  Europe,  which  aft'ects  materially  our  relations 
with  the  powers  at  war,  and  which  has  changed  the  condition  of  their 
colonies  in  our  neighborhood,  we  are  of  opinion  with  you  that  it  would 
be  neither  wise  nor  safe  to  relax  our  measures  of  defense  or  to  lessen 
any  of  our  preparations  to  repel  aggression. 

Samuel  Livermore, 
President  of  the  Senate  pro  tempore. 

December  9,  1799. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 

the  United  States^ 

The  President  of  the  United  States: 

Highly  approving  as  we  do  the  pacific  and  humane  policy  which  has 
been  invariably  professed  and  sincerely  pursued  by  the  Executive  au- 


1  Richardson,  Messages,  vol.  1,  p.  292. 

2  Ibid.  p.  293. 


52  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

thority  of  the  United  States,  a  policy  which  our  best  interests  en- 
joined, and  of  which  honor  has  permitted  the  observance,  we  consider 
as  the  most  unequivocal  proof  of  your  inflexible  preseverance  in  the 
same  well-chosen  system  your  preparation  to  meet  the  first  indications 
on  the  part  of  the  French  Republic  of  a  disposition  to  accommodate 
the  existing  differences  between  the  two  countries  by  a  nomination  of 
ministers,  on  certain  conditions  which  the  honor  of  our  country  un- 
questionably dictated,  and  which  its  moderation  had  certainly  given  it 
a  right  to  prescribe.  When  the  assurances  thus  required  of  the  French 
Government,  previous  to  the  departure  of  our  envoys,  had  been  given 
through  their  minister  of  foreign  relations,  the  direction  that  they 
should  proceed  on  their  mission  was  on  your  part  a  completion  of  the 
measure,  and  manifests  the  sincerity  with  which  it  was  commenced. 
We  offer  up  our  fer\'ent  prayers  to  the  Supreme  Ruler  of  the  Universe 
for  the  success  of  their  embassy,  and  that  it  may  be  productive  of 
peace  and  happiness  to  our  common  country.  The  uniform  tenor  of 
your  conduct  through  a  life  useful  to  your  fellow-citizens  and  honor- 
able to  yourself  gives  a  sure  pledge  of  the  sincerity  with  which  the 
avowed  objects  of  the  negotiation  will  be  pursued  on  your  part,  and  we 
earnestly  pray  that  similar  dispositions  may  be  displayed  on  the  part 
of  France.  The  differences  which  unfortunately  subsist  between  the 
two  nations  can  not  fail  in  that  event  to  be  happily  terminated.  To 
produce  this  end,  to  all  so  desirable,  firmness,  moderation,  and  union 
at  home  constitute,  we  are  persuaded,  the  surest  means.  The  char- 
acter of  the  gentlemen  you  have  deputed,  and  still  more  the  character 
of  the  Government  which  deputes  them,  are  safe  pledges  to  their 
country  that  nothing  incompatible  with  its  honor  or  interest,  nothing 
inconsistent  with  our  obligations  of  good  faith  or  friendship  to  any 
other  nation,  will  be  stipulated. 

We  learn  with  pleasure  that  our  citizens,  with  their  property,  trading 
to  those  ports  of  St.  Domingo  with  which  commercial  intercourse  has 
been  renewed  have  been  duly  respected,  and  that  privateering  from 
those  ports  has  ceased. 

December  9,  1/99. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  53 

Reply  of  the  President^ 

United  States,  December  lo,  1799. 
Gentlemen  of  the  House  of  Representatives: 

As  long  as  we  maintain  with  harmony  and  affection  the  honor  of  our 
country  consistently  with  its  peace,  externally  and  internally,  while 
that  is  attainable,  or  in  war  when  that  becomes  necessary,  assert  its 
real  independence  and  sovereignty,  and  support  the  constitutional  ener- 
gies and  dignity  of  its  Government,  we  may  be  perfectly  sure,  under 
the  smiles  of  Divine  Providence,  that  we  shall  effectually  promote  and 
extend  our  national  interest  and  happiness. 

John  Adams. 


FOURTH   ANNUAL  ADDRESS^ 

United  States,  November  22,  1800. 
Gentlemen  of  the  Senate  and  Gentlemen  of  the  House  of 
Representatives: 

The  envoys  extraordinary  and  ministers  plenipotentiary  from  the 
United  Stales  to  France  were  received  by  the  First  Consul  with  the 
respect  due  to  their  character,  and  three  persons  with  equal  powers 
were  appointed  to  treat  with  them.  Although  at  the  date  of  the  last 
official  intelligence  the  negotiation  had  not  terminated,  yet  it  is  to  be 
hoped  that  our  efforts  to  effect  an  accommodation  will  at  length  meet 
with  a  success  proportioned  to  the  sincerity  with  which  they  have  been 
so  often  repeated. 

While  our  best  endeavors  for  the  preservation  of  harmony  with  all 
nations  will  continue  to  be  used,  the  experience  of  the  world  and  our 
own  experience  admonish  us  of  the  insecurity  of  trusting  too  confi- 
dently to  their  success.  We  can  not,  without  committting  a  dangerous 
imprudence,  abandon  those  measures  of  self-protection  which  are 
adapted  to  our  situation  and  to  which,  notwithstanding  our  pacific 
policy,  the  violence  and  injustice  of  others  may  again  compel  us  to 
resort.  While  our  vast  extent  of  seacoast,  the  commercial  and  agricul- 
tural habits  of  our  people,  the  great  capital  they  will  continue  to  trust 


1  Richardson,  Messages,  vol.  1,  p.  296. 

2  Ibid.,  p.  305. 


54  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

on  the  ocean,  suggest  the  system  of  defense  which  will  be  most  bene- 
ficial to  ourselves,  our  distance  from  Europe  and  our  resources  for 
maritime  strength  will  enable  us  to  employ  it  with  effect.  Seasonable 
and  systematic  arrangements,  so  far  as  our  resources  will  justify,  for 
a  navy  adapted  to  defensive  war.  and  which  may  in  case  of  necessity 
be  quickly  brought  into  use,  seem  to  be  as  much  recommended  by  a 
wise  and  true  economy  as  by  a  just  regard  for  our  future  tranquillity, 
for  the  safety  of  our  shores,  and  for  the  protection  of  our  property 
committed  to  the  ocean. 

The  present  Navy  of  the  United  States,  called  suddenly  into  existence 
by  a  great  national  exigency,  has  raised  us  in  our  own  esteem,  and  by 
the  protection  afforded  to  our  commerce  has  effected  to  the  extent  of 
our  expectations  the  objects  for  which  it  was  created. 


Address  of  the  House  of  Representatives  to  John  Adams,  President  of 

the  United  States^ 

John  Adams, 

President  of  the  United  States: 

The  Constitution  of  the  United  States  having  confided  the  manage- 
ment of  our  foreign  negotiations  to  the  control  of  the  Executive  power, 
we  cheerfully  submit  to  its  decisions  on  this  important  subject;  and  in 
respect  to  the  negotiations  now  pending  with  France  we  sincerly  hope 
that  the  final  result  may  prove  as  fortunate  to  our  country  as  the  most 
ardent  mind  can  wish. 

So  long  as  a  predatory  war  is  carried  on  against  our  commerce  we 
should  sacrifice  the  interests  and  disappoint  the  expectations  of  our 
constituents  should  we  for  a  moment  relax  that  system  of  maritime 
defense  which  has  resulted  in  such  beneficial  effects.  At  this  period 
it  is  confidently  believed  that  few  persons  can  be  found  within  the 
United  States  who  do  not  admit  that  a  navy,  well  organized,  must 
constitute  the  natural  and  efficient  defense  of  this  country  against  all 
foreign  hostility. 

November  26,  1800. 


1  Richardson,  Messages,  vol.  1,  p.  310. 


MESSAGES  OF  PRESIDENT  ADAMS  TO  CONGRESS  55 

Reply  of  the  President^ 

Washington,  November  2'j,  1800. 
Mr.  Speaker  and  Gentlemen  of  the  House  of  Representatives: 

With  you,  gentlemen,  I  sincerely  hope  that  the  final  result  of  the 
negotiations  now  pending  with  France  may  prove  as  fortunate  to  our 
country  as  they  have  been  commenced  with  sincerity  and  prosecuted 
with  deliberation  and  caution.  With  you  I  cordially  agree  that  so 
long  as  a  predatory  war  is  carried  on  against  our  commerce  we  should 
sacrifice  the  interests  and  disappoint  the  expectations  of  our  con- 
stituents should  we  for  a  moment  relax  that  system  of  maritime  de- 
fense which  has  resulted  in  such  beneficial  effects.  With  you  I  con- 
fidently believe  that  few  persons  can  be  found  within  the  United  States 
who  do  not  admit  that  a  navy,  well  organized,  must  constitute  the 
natural  and  efficient  defense  of  this  country  against  all  foreign  hostility. 

John  Adams. 


1  Richardson,  Messages,  vol.  1,  p.  312. 


Acts  of  Congress 

An  Act  more  effectually  to  protect  the  Commerce  and  Coasts  of  the 

United  States^ 

Whereas  armed  vessels  sailing  under  authority  or  pretense  of  au- 
thority from  the  Republic  of  France,  have  committed  depredations  on 
the  commerce  of  the  United  States,  and  have  recently  captured  the 
vessels  and  property  of  citizens  thereof,  on  and  near  the  coasts,  in 
violation  of  the  law  of  nations,  and  treaties  between  the  United  States 
and  the  French  nation.    Therefore: 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled.  That  it  shall  be  law- 
ful for  the  President  of  the  United  States,  and  he  is  hereby  authorized 
to  instruct  and  direct  the  commanders  of  the  armed  vessels  belonging 
to  the  United  States  to  seize,  take  and  bring  into  any  port  of  the 
United  States,  to  be  proceeded  against  according  to  the  laws  of 
nations,  any  such  armed  vessel  which  shall  have  committed  or  which 
shall  be  found  hovering  on  the  coasts  of  the  United  States,  for  the 
purpose  of  committing  depredations  on  the  vessels  belonging  to  citizens 
thereof ; — and  also  to  retake  any  ship  or  vessel,  of  any  citizen  or  citi- 
zens of  the  United  States  which  may  have  been  captured  by  any  such 
armed  vessel. 

Approved,  May  28,  1798. 


An  Act  to  suspend  the  commercial  intercourse  between   the   United 
States  and  France^  and  the  dependencies  thereof^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled.  That  no 
ship  or  vessel,  owned,  hired,  or  employed,  wholly  or  in  part,  by  any 
person  resident  within  the  United  States,  and  which  shall  depart 
therefrom  after  the  first  day  of  July  next,  shall  be  allowed  to  proceed 
directly,  or  from  any  intermediate  port  or  place,  to  any  port  or  place 
within  the  territory  of  the  French  Republic,  or  the  dependencies  there- 
of, or  to  any  place  in  the  West  Indies,  or  elsewhere  under  the  ac- 

1  Statutes  at  Large,  vol.  I,  p.  561. 

2  Ibid.,  p.  565. 


ACTS  OF  CONGRESS  S7 

knowledged  government  of  France,  or  shall  be  employed  in  any  traf- 
fic or  commerce  with,  or  for  any  person  resident  within  the  jurisdic- 
tion, or  under  the  authority  of  the  French  Republic.  And  if  any  ship 
or  vessel,  in  any  voyage  thereafter  commencing,  and  before  her  return 
within  the  United  States,  shall  be  voluntarily  carried,  or  suffered  to 
proceed  to  any  French  port  or  place  as  aforesaid,  or  shall  be  employed 
as  aforesaid,  contrary  to  the  intent  hereof,  every  such  ship  or  vessel 
together  with  her  cargo  shall  be  forfeited,  and  shall  accrue,  the  one 
half  to  the  use  of  the  United  States,  and  the  other  half  to  the  use  of  any 
person  or  persons,  citizens  of  the  United  States,  who  will  inform  and 
prosecute  for  the  same ;  and  shall  be  liable  to  be  seized,  prosecuted  and 
condemned  in  any  circuit  or  district  court  of  the  United  States  which 
shall  be  holden  within  or  for  the  district  where  the  seizure  shall  be 
made. 

Sec.  2.  And  be  it  further  enacted,  That  after  the  first  day  of  July 
next,  no  clearance  for  a  foreign  voyage  shall  be  granted  to  any  ship 
or  vessel,  owned,  hired,  or  employed,  wholly  or  in  part,  by  any  per- 
son resident  within  the  United  States,  until  a  bond  shall  be  given  to 
the  use  of  the  United  States,  wherein  the  owner  or  employer,  if 
usually  resident  or  present,  where  the  clearance  shall  be  required,  and 
otherwise  his  agent  or  factor,  and  the  master  or  captain  of  such  ship 
or  vessel  for  the  intended  voyage,  shall  be  parties,  in  a  sum  equal  to 
the  value  of  the  ship  or  vessel,  and  her  cargo,  and  shall  find  sufficient 
surety  or  sureties,  to  the  amount  of  one  half  the  value  thereof,  with 
condition  that  the  same  shall  not,  during  her  intended  voyage  or 
before  her  return  within  the  United  States,  proceed,  or  be  carried, 
directly  or  indirectly,  to  any  port  or  place  within  the  territory  of  the 
French  Republic,  or  the  dependencies  thereof,  or  any  place  in  the 
West  Indies,  or  elsewhere,  under  the  acknowledged  government  of 
France,  unless  by  distress  of  weather,  or  want  of  provisions,  or  by 
actual  force  and  violence,  to  be  fully  proved  and  manifested  before  the 
acquittance  of  such  bond ;  and  that  such  vessel  is  not,  and  shall  not  be 
employed  during  her  intended  voyage,  or  before  her  return,  as  afore- 
said, in  any  traffic  or  commerce  with  or  for  any  person  resident  within 
the  territory  of  that  republic,  or  in  any  of  the  dependencies  thereof. 

Sec.  3.  And  he  it  further  enacted,  That  from  and  after  due  notice 
of  the  passing  of  this  act,  no  French  ship  or  vessel,  armed  or  unarmed, 
commissioned  by  or  for,  or  under  the  authority  of  the  French  Republic, 
or  owned,  fitted,  hired  or  employed  by  any  person  resident  within  the 


58  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

territory  of  that  republic,  or  any  of  the  dependencies  thereof,  or  sail- 
ing or  coming  therefrom,  excepting  any  vessel  to  which  the  President 
of  the  United  States  shall  grant  a  passport,  which  he  is  hereby  author- 
ized to  grant  in  all  cases  where  it  shall  be  requisite  for  the  purposes 
of  any  political  or  national  intercourse,  shall  be  allowed  an  entry,  or 
to  remain  within  the  territory  of  the  United  States,  unless  driven  there 
by  distress  of  weather,  or  in  want  of  provisions.  And  if  contrary  to 
the  intent  hereof  any  such  ship  or  vessel  shall  be  found  within  the 
jurisdictional  limits  of  the  United  States,  not  being  liable  to  seizure 
for  any  other  cause,  the  company  having  charge  thereof  shall  be  re- 
quired to  depart  and  carry  away  the  same,  avoiding  all  unnecessary 
delay;  and  if  they  shall,  notwithstanding,  remain,  it  shall  be  the  duty 
of  the  collector  of  the  district,  wherein,  or  nearest  to  which,  such  ship 
or  vessel  shall  be,  to  seize  and  detain  the  same,  at  the  expense  of  the 
United  States :  Provided,  that  ships  or  vessels  which  shall  be  bona  fide 
the  property  of,  or  hired,  or  employed  by  citizens  of  the  United  States, 
shall  be  excepted  from  this  prohibition  until  the  first  day  of  December 
next,  and  no  longer:  And  provided  that  in  the  case  of  vessels  hereby 
prohibited,  which  shall  be  driven  by  distress  of  weather,  or  the  want 
of  provisions  into  any  port  or  place  of  the  United  States,  they  may 
be  suffered  to  remain  under  the  custody  of  the  collector  there,  or 
nearest  thereto,  until  suitable  repairs  or  supplies  can  be  obtained,  and 
as  soon  as  may  be  thereafter  shall  be  required  and  suffered  to  depart: 
but  no  part  of  the  lading  of  such  vessel  shall  be  taken  out  or  disposed 
of,  unless  by  the  special  permit  of  such  collector,  or  to  defray  the 
unavoidable  expense  of  such  repairs  or  supplies. 

Sec.  4.  And  he  it  further  enacted,  That  this  act  shall  continue  and 
be  in  force  until  the  end  of  the  next  session  of  Congress,  and  no 
longer. 

Sec.  5.  Provided,  and  he  it  further  enacted.  That  if,  before  the  next 
session  of  Congress,  the  government  of  France,  and  all  persons  acting 
by  or  under  their  authority,  shall  clearly  disavow,  and  shall  be  found 
to  refrain  from  the  aggressions,  depredations  and  hostilities  which 
have  been,  and  are  by  them  encouraged  and  maintained  against  the 
vessels  and  other  property  of  the  citizens  of  the  United  States,  and 
against  their  national  rights  and  sovereignty,  in  violation  of  the  faith 
of  treaties,  and  the  laws  of  nations,  and  shall  thereby  acknowledge 
the  just  claims  of  the  United  States  to  be  considered  as  in  all  respects 
neutral,  and  unconnected  in  the  present  European  war,  if  the  same 


ACTS  OF  CONGRESS  59 

shall  be  continued,  then  and  thereupon  it  shall  be  lawful  for  the 
President  of  the  United  States,  being  well  ascertained  of  the  premises, 
to  remit  and  discontinue  the  prohibitions  and  restraints  hereby  enacted 
and  declared ;  and  he  shall  be,  and  is  hereby  authorized  to  make  procla- 
mation thereof  accordingly:  Provided,  that  nothing  in  this  act  con- 
tained, shall  extend  to  any  ship  or  vessel  to  which  the  President  of  the 
United  States  shall  grant  a  permission  to  enter  or  clear;  which  per- 
mission he  is  hereby  authorized  to  grant  to  vessels  which  shall  be 
solely  employed  in  any  purpose  of  political  or  national  intercourse,  or 
to  aid  the  departure  of  any  French  persons,  with  their  goods  and 
effects,  who  shall  have  been  resident  within  the  United  States,  when 
he  may  think  it  requisite. 
Approved,  June  13,  1798. 


An  Act  to  authorise  the  defence  of  the  Merchant  Vessels  of  the  United 
States  against  French  depredations^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That 
the  commander  and  crew  of  any  merchant  vessel  of  the  United  States, 
owned  wholly  by  a  citizen  or  citizens  thereof,  may  oppose  and  defend 
against  any  search,  restraint  or  seizure,  which  shall  be  attempted  upon 
such  vessel,  or  upon  any  other  vessel,  owned,  as  aforesaid,  by  the 
commander  or  crew  of  any  armed  vessel  sailing  under  French  colours, 
or  acting,  or  pretending  to  act,  by,  or  under  the  authority  of  the  French 
republic ;  and  may  repel  by  force  any  assault  or  hostility  which  shall 
be  made  or  committed,  on  the  part  of  such  French,  or  pretended  French 
vessel,  pursuing  such  attempt,  and  may  subdue  and  capture  the  same ; 
and  may  also  retake  any  vessel  owned,  as  aforesaid,  which  may  have 
been  captured  by  any  vessel  sailing  under  French  colours,  or  acting, 
or  pretending  to  act,  by  or  under  authority  from  the  French  republic. 

Sec.  2.  And  be  it  further  enacted,  That  whenever  the  commander 
and  crew  of  any  merchant  vessel  of  the  United  States  shall  subdue 
and  capture  any  French,  or  pretended  French  armed  vessel,  from 
which  an  assault  or  other  hostility  shall  be  first  made,  as  aforesaid, 
such  armed  vessel  with  her  tackle,  appurtenances,  ammunition  and 
lading,  shall  accrue,  the  one  half  to  the  owner  or  owners  of  such 


1  Statutes  at  Large,  vol.  I,  p.  572. 


60  THE  CONTROVERSY  WITH  FRANCE.  1797-1800 

merchant  vessel  of  the  United  States,  and  the  other  half  to  the  captors : 
And  being  brought  into  any  port  of  the  United  States,  shall  and  may 
be  adjudged  and  condemned  to  their  use,  after  due  process  and  trial, 
in  any  court  of  the  United  States,  having  admiralty  jurisdiction,  and 
which  shall  be  holden  for  the  district  into  which  such  captured  vessel 
shall  be  brought;  and  the  same  court  shall  thereupon  order  a  sale 
and  distribution  thereof,  accordingly,  and  at  their  discretion ;  saving 
any  agreement,  which  shall  be  between  the  owner  or  owners,  and  the 
commander  and  crew  of  such  merchant  vessel.  In  all  cases  of  recap- 
ture of  vessels  belonging  to  citizens  of  the  United  States,  by  any  armed 
merchant  vessel,  aforesaid,  the  said  vessels,  with  their  cargoes,  shall 
be  adjudged  to  be  restored,  and  shall,  by  decree  of  such  courts  as  have 
jurisdiction,  in  the  premises,  be  restored  to  the  former  owner  or 
owners,  he  or  they  paying  for  salvage,  not  less  than  one  eighth,  nor 
more  than  one  half  of  the  true  value  of  the  said  vessels  and  cargoes, 
at  the  discretion  of  the  court;  which  payments  shall  be  made  without 
any  deduction  whatsoever. 

Sec.  3.  And  be  it  further  enacted,  That  after  notice  of  this  act,  at 
the  several  custom-houses,  no  armed  merchant  vessel  of  the  United 
States  shall  receive  a  clearance  or  permit,  or  shall  be  suffered  to  depart 
therefrom,  unless  the  owner  or  owners,  and  the  master  or  commander 
of  such  vessel  for  the  intended  voyage,  shall  give  bond,  to  the  use  of 
the  United  States,  in  a  sum  equal  to  double  the  value  of  such  vessel, 
with  condition,  that  such  vessel  shall  not  make  or  commit  any  depre- 
dation, outrage,  unlawful  assault,  or  unprovoked  violence  upon  the 
high  seas,  against  the  vessel  of  any  nation  in  amity  with  the  United 
States ;  and  that  the  guns,  arms  and  ammunition  of  such  vessel  shall 
be  returned  within  the  United  States,  or  otherwise  accounted  for,  and 
shall  not  be  sold  or  disposed  of  in  any  foreign  port  or  place;  and  that 
such  owner  or  owners,  and  the  commander  and  crew  of  such  merchant 
vessel  shall,  in  all  things,  observe  and  perform  such  further  instruc- 
tions in  the  premises,  as  the  President  of  the  United  States  shall 
establish  and  order,  for  the  better  government  of  the  armed  merchant 
vessels  of  the  United  States. 

Sec.  4.  And  be  it  further  enacted.  That  the  President  of  the  United 
States  shall  be,  and  he  is  hereby  authorized  to  establish  and  order 
suitable  instructions  to,  and  for,  the  armed  merchant  vessels  of  the 
United  States,  for  the  better  governing  and  restraining  the  command- 
ers and  crews  who  shall  be  employed  therein,  and  to  prevent  any  out- 


ACTS  OF  CONGRESS  61 

rage,  cruelty  or  injury  which  they  may  be  disposed  to  commit;  a  copy 
of  which  instructions  shall  be  delivered  by  the  collector  of  the  customs 
to  the  commander  of  such  vessel,  when  he  shall  give  bond,  as  afore- 
said. And  it  shall  be  the  duty  of  the  owner  or  owners,  and  com- 
mander and  crew,  for  the  time  being,  of  such  armed  merchant  vessel 
of  the  United  States,  at  each  return  to  any  port  of  the  United 
States,  to  make  report  to  the  collector  thereof  of  any  rencoun- 
ter which  shall  have  happened  with  any  foreign  vessel,  and  of 
the  state  of  the  company  and  crew  of  any  vessel  which  they  shall  have 
subdued  or  captured ;  and  the  persons  of  such  crew  or  company  shall 
be  delivered  to  the  care  of  such  collector,  who,  with  the  aid  of  the 
marshal  of  the  same  district,  or  the  nearest  military  officer  of  the 
United  States,  or  of  the  civil  or  military  officers  of  any  state,  shall 
take  suitable  care  for  the  restraint,  preservation  and  comfort  of  such 
persons,  at  the  expense  of  the  United  States,  until  the  pleasure  of  tlie 
President  of  the  United  States  shall  be  known  concerning  them. 

Sec.  5.  And  be  it  further  etvacted,  That  this  act  shall  continue  and 
be  in  force  for  the  term  of  one  year,  and  until  the  end  of  the  next 
session  of  Congress  thereafter. 

Sec.  6.  Provided,  and  be  it  further  enacted,  That  whenever  the 
government  of  France,  and  all  persons  acting  by,  or  under  their  au- 
thority, shall  disavow,  and  shall  cause  the  commanders  and  crews  of 
all  armed  French  vessels  to  refrain  from  the  lawless  depredations  and 
outrages  hitherto  encouraged  and  authorized  by  that  government 
against  the  merchant  vessel [s]  of  the  United  States,  and  shall  cause 
the  laws  of  nations  to  be  observed  by  the  said  armed  French  vessels, 
the  President  of  the  United  States  shall  be,  and  he  is  hereby  author- 
ized to  instruct  the  commanders  and  crews  of  the  merchant  vessels  of 
the  United  States  to  submit  to  any  regular  search  by  the  commanders 
or  crews  of  French  vessels,  and  to  refrain  from  any  force  or  capture 
to  be  exercised  by  virtue  hereof. 

Approved,  June  25,  1798. 


An  Act  in  addition  to  the  act  more  effectually  to  protect  the  Commerce 
and  Coasts  of  the  United  States^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Represeiiia- 
tives  of  the  United  States  of  America  in  Congress  assembled,  That  all 

1  Statutes  at  Large,  vol.  I,  p.  574. 


62  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

such  armed  vessels  as  may  be  seized,  taken  and  brought  into  any  port 
of  the  United  States,  in  pursuance  of  the  act,  entitled  "An  act  more 
effectually  to  protect  the  commerce  and  coasts  of  the  United  States," 
with  the  apparel,  guns  and  appurtenances  of  such  vessels,  and  the 
goods  and  effects,  which  shall  be  found  on  board  the  same,  shall  be 
liable  to  forfeiture  and  condemnation,  and  may  be  libelled  and  pro- 
ceeded against  in  the  district  courts  of  the  United  States,  for  the 
district  into  which  the  same  may  beb  rought :  Provided,  that  such  for- 
feiture shall  not  extend  to  any  goods  or  effects,  the  property  of  any 
citizen  or  person  resident  within  the  United  States,  and  which  shall 
have  been  before  taken  by  the  crew  of  such  captured  vessel. 

Sec.  2.  And  be  it  further  enacted,  That  whenever  any  vessel  the 
property  of,  or  employed  by  any  citizen  of  the  United  States,  or  per- 
son resident  therein,  or  any  goods  or  effects  belonging  to  any  such 
citizen  or  resident  shall  be  re-captured  by  any  public  armed  vessel  of 
the  United  States,  the  same  shall  be  restored  to  the  former  owner  or 
owners,  upon  due  proof,  he  or  they  paying  and  allowing,  as  and  for 
salvage  to  the  recaptors,  one  eighth  part  of  the  value  of  such  vessel, 
goods  and  effects,  free  of  all  deductions  and  expenses. 

Sec.  3.  And  he  it  further  enacted.  That  whenever  any  armed  vessel, 
captured  and  condemned,  as  aforesaid,  shall  have  been  of  superior  or 
equal  force  to  the  public  armed  vessel  of  the  United  States  by  which 
such  capture  shall  have  been  made,  the  forfeiture  shall  be  and  accrue 
wholly  to  the  captors:  and  in  other  cases,  one  half  thereof  shall  be 
to  the  use  of  the  United  States,  and  the  residue  to  the  captors.  And 
all  salvage  which  shall  be  allowed  and  recovered  upon  any  vessel, 
goods  or  effects  re-captured,  and  to  be  restored,  as  aforesaid,  shall 
belong  wholly  to  the  officers  and  crew  of  the  public  armed  vessel  of 
the  United  States  by  which  such  re-capture  shall  be  made:  and  the 
court  before  whom  any  condemnation  shall  be  had,  as  aforesaid,  shall 
and  may  order  the  sale  of  the  vessel,  goods  and  effects  condemned, 
to  be  made  at  public  auction,  upon  due  notice  by  the  marshal  of  the 
district  in  which  the  same  shall  be :  and  all  expenses  of  condemnation 
and  sale,  being  deducted  from  the  proceeds,  the  part  thereof  which 
shall  accrue  to  the  United  States,  shall  be  paid  into  the  public  treasury, 
and  the  residue,  and  all  allowances  of  salvage,  as  aforesaid,  shall  be 
distributed  to,  and  among  the  officers  and  crews  concerned  therein, 
in  the  proportions  which  the  President  of  the  United  States  shall 
direct. 


ACTS  OF  CONGRESS  63 

Sec.  4.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  to  cause  the  officers  and  crews  of  the 
vessels  so  captured  and  hostile  persons  found  on  board  any  vessel, 
which  shall  be  re-captured,  as  aforesaid,  to  be  confined  in  any  place 
of  safety  within  the  United  States,  in  such  manner  as  he  may  think 
the  public  interest  may  require,  and  all  marshals  and  other  officers 
of  the  United  States  are  hereby  required  to  execute  such  orders  as  the 
President  may  issue  for  the  said  purpose. 

Approved,  June  28,  1798. 


An  Act  respecting  Alien  Enemies^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled.  That 
whenever  there  shall  be  a  declared  war  between  the  United  States 
and  any  foreign  nation  or  government,  or  any  invasion  or  predator}' 
incursion  shall  be  perpetrated,  attempted,  or  threatened  against  the 
territory  of  the  United  States,  by  any  foreign  nation  or  government, 
and  the  President  of  the  United  States  shall  make  public  proclamation 
of  the  event,  all  natives,  citizens,  denizens,  or  subjects  of  the  hostile 
nation  or  government,  being  males  of  the  age  of  fourteen  years  and 
upwards,  who  shall  be  within  the  United  States,  and  not  actually 
naturalized,  shall  be  liable  to  be  apprehended,  restrained,  secured  and 
removed,  as  alien  enemies.  And  the  President  of  the  United  States 
shall  be,  and  he  is  hereby  authorized,  in  any  event,  as  aforesaid,  by  his 
proclamation  thereof,  or  other  public  act,  to  direct  the  conduct  to  be 
observed,  on  the  part  of  the  United  States,  towards  the  aliens  who 
shall  become  liable,  as  aforesaid;  the  manner  and  degree  of  the 
restraint  to  which  they  shall  be  subject,  and  in  what  cases,  and  upon 
what  security  their  residence  shall  be  permitted,  and  to  provide  for  the 
removal  of  those,  who,  not  being  permitted  to  reside  within  the  United 
States,  shall  refuse  or  neglect  to  depart  therefrom;  and  to  establish 
any  other  regulations  which  shall  be  found  necessary  in  the  premises 
and  for  the  public  safety:  Provided,  that  aliens  resident  within  the 
United  States,  who  shall  become  liable  as  enemies,  in  the  manner  afore- 
said, and  who  shall  not  be  chargeable  with  actual  hostility,  or  other 
crime  against  the  public  safety,  shall  be  allowed,  for  the  recovery,  dis- 


1  Statutes  at  Large,  vol.  I,  p.  577. 


64  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

posal,  and  removal  of  their  goods  and  effects,  and  for  their  departure, 
the  full  time  which  is,  or  shall  be  stipulated  by  any  treaty,  where  any 
shall  have  been  between  the  United  States,  and  the  hostile  nation  or 
government,  of  wliich  they  shall  be  natives,  citizens,  denizens  or  sub- 
jects: and  where  no  such  treaty  shall  have  existed,  the  President  of 
the  United  States  may  ascertain  and  declare  such  reasonable  time  as 
may  be  consistent  with  the  public  safety,  and  according  to  the  dictates 
of  humanity  and  national  hospitality. 

Sec.  2.  And  be  it  further  enacted,  That  after  any  proclamation  shall 
be  made  as  aforesaid,  it  shall  be  the  duty  of  the  several  courts  of  the 
United  States,  and  of  each  state,  having  criminal  jurisdiction,  and  of 
the  several  judges  and  justices  of  the  courts  of  the  United  States, 
and  they  shall  be,  and  are  hereby  respectively,  authorized  upon  com- 
plaint, against  any  alien  or  alien  enemies,  as  aforesaid,  who  shall  be 
resident  and  at  large  within  such  jurisdiction  or  district,  to  the  danger 
of  the  public  peace  or  safety,  and  contrary  to  the  tenor  or  intent  of 
such  proclamation,  or  other  regulations  which  the  President  of  the 
United  States  shall  and  may  establish  in  the  premises,  to  cause  such 
alien  or  aliens  to  be  duly  apprehended  and  convened  before  such  court, 
judge  or  justice;  and  after  a  full  examination  and  hearing  on  such 
complaint,  and  sufficient  cause  therefor  appearing,  shall  and  may 
order  such  alien  or  aliens  to  be  removed  out  of  the  territory  of  the 
United  States,  or  to  give  sureties  of  their  good  behaviour,  or  to  be 
otherwise  restrained,  conformably  to  the  proclamation  or  regulations 
which  shall  and  may  be  established  as  aforesaid,  and  may  imprison, 
or  otherwise  secure  such  alien  or  aliens,  until  the  order  which  shall 
and  may  be  made,  as  aforesaid,  shall  be  performed. 

Sec.  3.  And  be  it  further  enacted,  That  it  shall  be  the  duty  of  the 
marshal  of  the  district  in  which  any  alien  enemy  shall  be  apprehended, 
who  by  the  President  of  the  United  States,  or  by  order  of  any  court, 
judge  or  justice,  as  aforesaid,  shall  be  required  to  depart,  and  to  be 
removed,  as  aforesaid,  to  provide  therefor,  and  to  execute  such  order, 
bv  himself  or  his  deputy,  or  other  discreet  person  or  persons  to  be 
employed  by  him,  by  causing  a  removal  of  such  alien  out  of  the  terri- 
tory of  the  United  States;  and  for  such  removal  the  marshal  shall 
have  the  warrant  of  the  President  of  the  United  States,  or  of  the 
court,  judge  or  justice  ordering  the  same,  as  the  case  may  be. 

Approved,  July  6,  1798. 


ACTS  OF  CONGRESS  65 

An  Act  to  declare  the  treaties  heretofore  concluded  with  France,  no 
longer  obligatory  on  the  United  States^ 

Whereas  the  treaties  concluded  between  the  United  States  and 
France  have  been  repeatedly  violated  on  the  part  of  the  French  gov- 
ernment; and  the  just  claims  of  the  United  States  for  reparation  of  the 
injuries  so  committed  have  been  refused,  and  their  attempts  to  negotiate 
an  amicable  adjustment  of  all  complaints  between  the  two  nations, 
have  been  repelled  with  indignity :  And  whereas,  under  authority  of 
the  French  government,  there  is  yet  pursued  against  the  United  States, 
a  system  of  predatory  violence,  infracting  the  said  treaties,  and  hostile 
to  the  rights  of  a  free  and  independent  nation : 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  United 
States  are  of  right  freed  and  exonerated  from  the  stipulations  of  the 
treaties,  and  of  the  consular  convention,  heretofore  concluded  between 
the  United  States  and  France ;  and  that  the  same  shall  not  henceforth 
be  regarded  as  legally  obligatory  on  the  government  or  citizens  of  the 
United  States. 

Approved,  July  7,  1798. 


An  Act  further  to  protect  the  Commerce  of  the  United  States^ 

Section  1,  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That  the 
President  of  the  United  States  shall  be,  and  he  is  hereby  authorized 
to  instruct  the  commanders  of  the  public  armed  vessels  which  are,  or 
which  shall  be  employed  in  the  service  of  the  United  States,  to  subdue, 
seize  and  take  any  armed  French  vessel,  which  shall  be  found  within 
the  jurisdictional  limits  of  the  United  States,  or  elsewhere,  on  the  high 
seas,  and  such  captured  vessel,  with  her  apparel,  guns  and  appurte- 
nances, and  the  goods  or  effects  which  shall  be  found  on  board  the 
same,  being  French  property,  shall  be  brought  within  some  port  of  the 
United  States,  and  shall  be  duly  proceeded  against  and  condemned  as 
forfeited ;  and  shall  accrue  and  be  distributed,  as  by  law  is  or  shall  be 
provided  respecting  the  captures  which  shall  be  made  by  the  public 
armed  vessels  of  the  United  States. 


1  Statutes  at  Large,  voL  I,  p.  578. 

2  Ibid.  p.  578. 


66  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

Sec.  2.  And  be  it  further  enacted,  That  the  President  of  the  United 
States  shall  be,  and  he  is  hereby  authorized  to  grant  to  the  owners  of 
private  armed  ships  and  vessels  of  the  United  States,  who  shall  make 
application  therefor,  special  commissions  in  the  form  which  he  shall 
direct,  and  under  the  seal  of  the  United  States ;  and  such  private  armed 
vessels,  when  duly  commissioned,  as  aforesaid,  shall  have  the  same 
license  and  authority  for  the  subduing,  seizing  and  capturing  any 
armed  French  vessel,  and  for  the  recapture  of  the  vessels,  goods  and 
effects  of  the  people  of  the  United  States,  as  the  public  armed  vessels 
of  the  United  States  may  by  law  have ;  and  shall  be,  in  like  manner, 
subject  to  such  instructions  as  shall  be  ordered  by  the  President  of  the 
United  States,  for  the  regulation  of  their  conduct.  And  the  commis- 
sions which  shall  be  granted,  as  aforesaid,  shall  be  revocable  at  the 
pleasure  of  the  President  of  the  United  States. 

Sec.  3.  Provided,  and  be  it  further  enacted.  That  every  person  in- 
tending to  set  forth  and  employ  an  armed  vessel,  and  applying  for  a 
commission,  as  aforesaid,  shall  produce  in  writing  the  name,  and  a 
suitable  description  of  the  tonnage  and  force  of  the  vessel,  and  the 
name  and  place  of  residence  of  each  owner  concerned  therein,  the 
number  of  the  crew  and  the  name  of  the  commander,  and  the  two 
officers  next  in  rank,  appointed  for  such  vessel ;  which  writing  shall 
be  signed  by  the  person  or  persons  making  such  application,  and  filed 
with  the  Secretary  of  State,  or  shall  be  delivered  to  any  other  officer 
or  person  who  shall  be  employed  to  deliver  out  such  commissions, 
to  be  by  him  transmitted  to  the  Secretary  of  State. 

Sec.  4.  And  provided,  and  be  it  further  enacted.  That  before  any 
commission,  as  aforesaid,  shall  be  issued,  the  owner  or  owners  of  the 
ship  or  vessel  for  which  the  same  shall  be  requested,  and  the  com- 
mander thereof,  for  the  time  being,  shall  give  bond  to  the  United 
States,  with  at  least  two  responsible  sureties,  not  interested  in  such 
vessel,  in  the  penal  sum  of  seven  thousand  dollars;  or  if  such  vessel 
be  provided  with  more  than  one  hundred  and  fifty  men,  then  in  the 
penal  sum  of  fourteen  thousand  dollars ;  with  condition  that  the  own- 
ers, and  officers,  and  crews  who  shall  be  employed  on  board  of  such 
commissioned  vessel,  shall  and  will  observ^e  the  treaties  and  laws  of 
the  United  States,  and  the  instructions  which  shall  be  given  them  for 
the  regulation  of  their  conduct:  And  will  satisfy  all  damages  and 
injuries  which  shall  be  done  or  committed  contrary  to  the  tenor  thereof, 
by  such  vessel,  during  her  commission,  and  to  deliver  up  the  same 
when  revoked  by  the  President  of  the  United  States. 


ACTS  OF  CONGRESS  67 

Sec.  5.  And  be  it  further  enacted.  That  all  armed  French  vessels, 
together  with  their  apparel,  guns  and  appurtenances,  and  any  goods 
or  effects  which  shall  be  found  on  board  the  same,  being  French 
property,  and  which  shall  be  captured  by  any  private  armed  vessel  or 
vessels  of  the  United  States,  duly  commissioned,  as  aforesaid,  shall  be 
forfeited,  and  shall  accrue  to  the  owners  thereof,  and  the  officers  and 
crews  by  whom  such  captures  shall  be  made ;  and  on  due  condemnation 
had,  shall  be  distributed  according  to  any  agreement  which  shall  be 
between  them ;  or  in  failure  of  such  agreement,  then  by  the  discretion 
of  the  court  before  whom  such  condemnation  shall  be. 

Sec.  6.  And  be  it  further  enacted,  That  all  vessels,  goods  and  effects, 
the  property  of  any  citizen  of  the  United  States,  or  person  resident 
therein,  which  shall  be  recaptured,  as  aforesaid,  shall  be  restored  to  the 
lawful  owners,  upon  payment  by  them,  respectively,  of  a  just  and 
reasonable  salvage,  to  be  determined  by  the  mutual  agreement  of  the 
parties  concerned,  or  by  the  decree  of  any  court  of  the  United  States 
having  maritime  jurisdiction  according  to  the  nature  of  each  case: 
Proznded,  that  such  allowance  shall  not  be  less  than  one  eighth,  or 
exceeding  one  half  of  the  full  value  of  such  recapture,  without  any 
deduction.  And  such  salvage  shall  be  distributed  to  and  among  the 
owners,  officers  and  crews  of  the  private  armed  vessel  or  vessels 
entitled  thereto,  according  to  any  agreement  which  shall  be  between 
them ;  or  in  case  of  no  agreement,  then  by  the  decree  of  the  court  who 
shall  determine  upon  such  salvage. 

Sec.  7.  And  he  it  further  enacted,  That  before  breaking  bulk  of  any 
vessel  which  shall  be  captured,  as  aforesaid,  or  other  disposal  or  con- 
version thereof,  or  of  any  articles  which  shall  be  found  on  board 
the  same,  such  capture  shall  be  brought  into  some  port  of  the  United 
States,  and  shall  be  libelled  and  proceeded  against  before  the  district 
court  of  the  same  district;  and  if  after  a  due  course  of  proceedings, 
such  capture  shall  be  decreed  as  forfeited  in  the  district  court,  or  in 
the  circuit  court  of  the  same  district,  in  the  case  of  any  appeal  duly 
allowed,  the  same  shall  be  delivered  to  the  owners  and  captors  con- 
cerned therein,  or  shall  be  publicly  sold  by  the  marshal  of  the  same 
court,  as  shall  be  finally  decreed  and  ordered  by  the  court.  And  the 
same  court,  who  shall  have  final  jurisdiction  of  any  libel  or  com- 
plaint of  any  capture,  as  aforesaid,  shall  and  may  decree  restitution, 
in  whole  or  in  part,  when  the  capture  and  restraint  shall  have  been 
made  without  just  cause,  as  aforesaid;  and  if  made  without  probable 


68  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

cause,  or  otherwise  unreasonably,  may  order  and  decree  damages  and 
costs  to  the  party  injured,  and  for  which  the  owners,  officers  and 
crews  of  the  private  armed  vessel  or  vessels  by  which  such  unjust 
capture  shall  have  been  made,  and  also  such  vessel  or  vessels  shall  be 
answerable  and  liable. 

Sec.  8.  And  be  it  further  enacted.  That  all  French  persons  and 
others,  who  shall  be  found  acting  on  board  any  French  armed  vessel, 
which  shall  be  captured,  or  on  board  of  any  vessel  of  the  United  States, 
which  shall  be  recaptured,  as  aforesaid,  shall  be  reported  to  the  col- 
lector of  the  port  in  which  they  shall  first  arrive,  and  shall  be  delivered 
to  the  custody  of  the  marshal,  or  of  some  civil  or  military  officer  of 
the  United  States,  or  of  any  state  in  or  near  such  port ;  who  shall  take 
charge  for  their  safe  keeping  and  support,  at  the  expense  of  the  United 
States. 

Approved,  July  9,  1798. 


An  Act  further  to  suspend  the  Commercial  Intercourse  between  the 
United  States  and  France,  and  the  dependencies  thereof^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That 
from  and  after  the  third  day  of  March  next,  no  ship  or  vessel  owned, 
hired  or  employed,  wholly,  or  in  part,  by  any  person  resident  within 
the  United  States,  and  which  shall  depart  thereform,  shall  be  allowed 
to  proceed  directly,  or  from  any  intermediate  port  or  place,  to  any  port 
or  place  within  the  territory  of  the  French  Republic,  or  the  dependen- 
cies thereof,  or  to  any  place  in  the  West  Indies,  or  elsewhere,  under 
the  acknowledged  government  of  France,  or  shall  be  employed  in  any 
traffic  or  commerce  with  or  for  any  person  resident  within  the  juris- 
diction, or  under  the  authority  of  the  French  Republic.  And  if  any 
ship  or  vessel,  in  any  voyage  thereafter  commencing,  and  before  her 
return  within  the  United  States,  shall  be  voluntarily  carried  or  suf- 
fered to  proceed  to  any  French  port  or  place,  as  aforesaid,  or  shall  be 
employed,  as  aforesaid,  contrary  to  the  intent  hereof,  every  such  ship 
or  vessel,  together  with  her  cargo,  shall  be  forfeited ;  and  shall  accrue, 
the  one  half  to  the  use  of  the  United  States,  and  the  other  half  to  the 


1  Statutes  at  Large,  vol.  I,  p.  613. 


ACTS  OF  CONGRESS  69 

use  of  any  person  or  persons,  citizens  of  the  United  States,  who  will 
inform  and  prosecute  for  the  same;  and  shall  be  liable  to  be  seized, 
and  may  be  prosecuted  and  condemned,  and  in  any  circuit  or  district 
court  of  the  United  States,  which  shall  be  holden  within  or  for  the 
district  where  the  seizure  shall  be  made. 

Sec.  2.  And  be  it  further  enacted,  That  from  and  after  the  pass- 
ing of  this  act,  no  clearance  for  a  foreign  voyage  shall  be  granted  to 
any  ship  or  vessel,  owned,  hired  or  employed,  wholly  or  in  part,  by 
any  person  resident  within  the  United  States,  until  a  bond  shall  be 
given,  to  the  use  of  the  United  States,  wherein  the  owner  or  employer, 
if  usually  resident  or  present  where  the  clearance  shall  be  required, 
and  otherwise  his  agent  or  factor,  and  the  master  or  captain  of  such 
ship  or  vessel,  for  the  intended  voyage,  shall  be  parties,  in  a  sum  equal 
to  the  value  of  the  ship  or  vessel,  and  the  one  third  of  the  value  of  her 
cargo,  and  shall  find  sufficient  surety  or  sureties  to  the  amount  of  one 
half  of  the  principal  sum,  with  condition  that  the  same  shall  not,  dur- 
ing her  intended  voyage,  or  before  her  return  within  the  United  States, 
proceed  or  be  carried,  directly  or  indirectly,  to  any  port  or  place  within 
the  territory  of  the  French  Republic,  or  the  dependencies  thereof,  or 
any  place  in  the  West  Indies,  or  elsewhere,  under  the  acknowledged 
government  of  France,  unless  by  actual  force  and  violence,  to  be  fully 
proved  and  manifested  before  the  acquittance  of  such  bond,  and  that 
such  vessel  is  not,  and  shall  not  be  employed,  during  her  intended 
voyage,  or  before  her  return,  as  aforesaid,  in  any  traffic  or  commerce, 
with  or  for  any  person  resident  within  the  territory  of  that  Republic, 
or  in  any  of  the  dependencies  thereof :  Provided,  that  in  no  case,  the 
surety  or  sureties  shall  be  answerable  for  more  than  ten  thousand 
dollars. 

Sec.  3.  And  be  it  further  enacted.  That  from  and  after  the  said  third 
day  of  March,  no  French  ship  or  vessel,  armed  or  unarmed,  commis- 
sioned by  or  for,  or  under  the  authority  of  the  French  Republic,  or 
owned,  fitted,  hired  or  employed  by  any  person  resident  within  the 
territory  of  that  Republic,  or  any  of  the  dependencies  thereof,  or  sail- 
ing or  coming  therefrom  (excepting  as  is  hereinafter  excepted),  shall 
be  allowed  an  entry,  or  to  remain  within  the  territory  of  the  United 
States,  unless  driven  thither  by  distress  of  weather,  or  in  want  of  pro- 
visions. And  if,  contrary  to  the  intent  hereof,  any  such  ship  or  vessel 
shall  be  found  within  the  jurisdictional  limits  of  the  United  States, 
not  being  liable  to  seizure  for  any  other  cause,  the  company  having 


70  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

charge  thereof,  shall  be  required  to  depart  and  carry  away  the  same, 
avoiding  all  unnecessary  delay;  and  if  they  shall,  notwithstanding,  re- 
main, it  shall  be  the  duty  of  the  collector  of  the  district  wherein,  or 
nearest  to  which,  such  ship  or  vessel  shall  be,  to  seize  and  detain  the 
same,  at  the  expense  of  the  United  States :  Provided,  that  in  the  case 
of  vessels  hereby  prohibited,  which  shall  be  driven  by  distress  of 
weather,  or  want  of  provisions,  into  any  port  or  place  of  the  United 
States,  they  may  be  suffered  to  remain  under  the  custody  of  the  col- 
lector there,  or  nearest  thereto,  until  suitable  repairs  or  supplies  can 
be  obtained;  and  as  soon  as  may  be  thereafter,  shall  be  required  and 
suffered  to  depart ;  but  no  part  of  the  lading  of  such  vessel  shall  be 
taken  out,  or  disposed  of,  unless  by  the  special  permit  of  such  collector, 
to  defray  the  unavoidable  expense  of  such  repairs  or  supplies. 

Sec.  4.  Provided,  and  be  it  further  enacted.  That  at  any  time 
after  the  passing  of  this  act,  it  shall  be  lawful  for  the  President  of 
the  United  States,  if  he  shall  deem  it  expedient  and  consistent  with 
the  interest  of  the  United  States,  by  his  order,  to  remit  and  discon- 
tinue, for  the  time  being,  the  restraints  and  prohibitions  aforesaid, 
either  with  respect  to  the  French  Republic,  or  to  any  island,  port  or 
place  belonging  to  the  said  Republic,  with  which  a  commercial  inter- 
course may  safely  be  renewed ;  and  also  to  revoke  such  order,  when- 
ever, in  his  opinion,  the  interest  of  the  United  States  shall  require ;  and 
he  shall  be,  and  hereby  is,  authorized  to  make  proclamation  thereof 
accordingly. 

Sec.  5.  And  be  it  further  enacted.  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  to  give  instructions  to  the  commanders 
of  the  public  armed  ships  of  the  United  States,  to  stop  and  examine 
any  ship  or  vessel  of  the  United  States  on  the  high  sea,  which  there 
may  be  reason  to  suspect  to  be  engaged  in  any  traffic  or  commerce 
contrary  to  the  true  tenor  hereof ;  and  if,  upon  examination,  it  shall 
appear  that  such  ship  or  vessel  is  bound  or  sailing  to  any  port  or  place 
within  the  territory  of  the  French  Republic,  or  her  dependencies,  con- 
trary to  the  intent  of  this  act,  it  shall  be  the  duty  of  the  commander 
of  such  public  armed  vessel,  to  seize  every  ship  or  vessel  engaged  in 
such  illicit  commerce,  and  send  the  same  to  the  nearest  port  in  the 
United  States ;  and  every  such  ship  or  vessel,  thus  bound  or  sailing 
to  any  such  port  or  place,  shall  upon  due  proof  thereof,  be  liable  to  the 
like  penalties  and  forfeitures,  as  are  provided  in  and  by  the  first  sec- 
tion of  this  act. 


ACTS  OF  CONGRESS  71 

Sec.  6.  And  be  it  further  enacted,  That  whenever  any  ship  or 
vessel,  owned  wholly  or  in  part,  or  employed  by  any  citizen  or  citizens 
of  the  United  States,  and  coming  from  any  port  or  place  within  the 
territory  of  the  French  Republic,  or  the  dependencies  thereof,  which 
has  arrived  within  any  port  or  place  of  the  United  States  since  the 
first  day  of  December  last  past,  or  which  shall  hereafter  arrive,  hath 
been  or  hereafter  shall  be  seized  and  detained  by  virtue  of  this  act,  or 
of  an  act,  intituled  "An  act  to  suspend  the  commercial  intercourse  be- 
tween the  United  States  and  France,  and  the  dependencies  thereof," 
it  shall  be  lawful  for  any  person  claiming  such  ship  or  vessel,  to  pre- 
fer his  petition  to  the  judge  of  the  district  in  which  such  seizure  shall 
be  made,  setting  forth  the  circumstances  of  his  case,  and  to  pray  that 
the  same  ship  or  vessel,  and  her  cargo,  may  be  restored;  and  the  said 
judge  shall  thereupon  inquire,  in  a  summary  manner,  into  the  circum- 
stances of  the  case,  first  causing  reasonable  notice  to  be  given  to  the 
attorney  of  the  United  States  for  such  district,  and  to  the  collector  of 
the  district  by  whom  such  seizure  or  detention  hath  been  or  shall  be 
made,  that  each  may  have  an  opportunity  of  showing  cause  against 
the  prayer  of  such  petition ;  and  shall  cause  the  facts  'which  shall  ap- 
pear upon  such  inquiry,  to  be  stated  and  annexed  to  the  petition,  and 
direct  their  transmission  to  the  Secretary  of  the  Treasury ;  and  if  it 
shall  appear  to  his  satisfaction,  that  such  ship  or  vessel  was  captured 
or  driven  into  such  port  or  place  by  distress  of  weather,  or  want  of 
provisions,  or  was  unavoidably  detained  and  delayed  by  some  embargo, 
arrest,  capture,  contrary  winds,  or  other  unavoidable  casualty,  without 
any  fault,  wilful  negligence,  or  intention  to  evade  the  provisions  of  the 
act  before  mentioned,  or  of  this  act,  in  any  such  claimant,  the  Secre- 
tary of  the  Treasury  shall  order  the  restoration  of  said  vessel  and 
cargo  to  such  claimant,  upon  such  terms  and  conditions  as  he  may 
deem  reasonable  and  just ;  otherwise,  and  in  all  cases  wherein  such 
petition  shall  not  be  presented,  every  ship  or  vessel  that  has  arrived 
since  the  said  first  day  of  December,  from  any  port  or  place  in  the 
French  Republic,  or  the  dependencies  thereof,  or  which  shall  hereafter 
arrive  within  any  port  or  place  of  the  United  States,  unless  driven  by 
stress  of  weather  or  want  of  provisions,  shall  be  liable  to  be  prosecuted 
and  condemned  in  the  same  manner  and  to  the  same  uses  as  are  pro- 
vided in  and  by  the  first  section  of  this  act ;  and  like  proceedings  shall 
also  be  had  and  like  forfeitures  incurred,  as  are  herein  provided  with 
respect  to  vessels  coming  from  France,  and  the  dependencies  thereof, 


72  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

in  all  cases  when  any  ship  or  vessel  shall  arrive  in  any  port  or  place 
of  the  United  States,  from  any  port  or  place,  with  which  all  commer- 
cial intercourse  shall  be  prohibited  by  proclamation,  according  to  the 
intent  of  this  act. 

Sec.  7.  Provided,  and  he  it  further  enacted,  That  nothing  in  this 
act  contained  shall  extend  to  any  ship  or  vessel  to  which  the  President 
of  the  United  States  shall  grant  a  permission  to  enter  or  to  clear; 
which  permission  he  is  hereby  authorized  to  grant  to  vessels  which 
shall  be  solely  employed  in  any  purpose  of  political  or  national  inter- 
course, or  to  aid  the  departure  of  any  French  persons,  with  their 
goods  and  effects,  who  shall  have  been  resident  within  the  United 
States,  when  he  may  think  requisite. 

Sec.  8.  And  he  it  further  enacted.  That  this  act  shall  continue 
and  be  in  force  until  the  third  day  of  March,  in  the  year  one  thousand 
eight  hundred. 

Approved,  February  9,  1799. 


An  Act  for  the  Government  of  the  Navy  of  the  United  States^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representatives 
of  the  United  States  of  America  in  Congress  assembled,  That  the  fol- 
lowing rules  and  regulations  be  adopted  and  put  in  force,  for  the  gov- 
ernment of  the  navy  of  the  United  States. 

Article  1.  The  commanders  of  all  ships  and  vessels,  belonging  to 
the  United  States,  are  strictly  required  to  show  in  themselves  a  good 
example  of  honour  and  virtue  to  their  ofificers  and  men,  and  to  be  very 
vigilant  in  inspecting  the  behaviour  of  all  such  as  are  under  them,  and 
to  discountenance  and  suppress  all  dissolute,  immoral,  and  disorderly 
practices,  and  also  such  as  are  contrary  to  the  rules  of  discipline  and 
obedience,  and  to  correct  those  who  are  guilty  of  the  same,  according 
to  the  usage  of  the  sea  service. 

2.  The  commanders  of  the  ships  of  the  United  States,  having  on 
board  chaplains,  are  to  take  care,  that  divine  service  be  performed  twice 
a  day,  and  a  sermon  preached  on  Sundays,  unless  bad  weather,  or  other 
extraordinary  accidents  prevent. 

3.  Any  person  who  shall  be  guilty  of  profane  swearing,  or  of  drunk- 


1  Statutes  at  Large,  vol.  I,  p.  709. 


ACTS  OF  CONGRESS  73 

enness,  if  a  seaman  or  marine,  shall  be  put  in  irons  until  sober,  and 
then  flogged  if  the  captain  shall  think  proper — but  if  an  officer,  he  shall 
forfeit  two  days  pay,  or  incur  such  punishment  as  a  court  martial  shall 
impose,  and  as  the  nature  and  degree  of  the  offence  shall  deserve. 

4.  No  commander,  for  any  one  offence,  shall  inflict  any  punishment 
upon  a  seaman  or  marine  beyond  twelve  lashes  upon  his  bare  back  with 
a  cat  of  nine  tails,  and  no  other  cat  shall  be  made  use  of  on  board  any 
ship  of  war,  or  other  vessel  belonging  to  the  United  States — if  the  fault 
shall  deserve  a  greater  punishment,  he  is  to  apply  to  the  Secretary  of  the 
Navy,  the  commander  in  chief  of  the  navy,  or  the  commander  of  a 
squadron,  in  order  to  the  trying  of  him  by  a  court  martial ;  and  in  the 
mean  time  he  may  put  him  under  confinement. 

5.  The  commander  is  never  by  his  own  authority  to  discharge  a  com- 
mission or  warrant  officer,  nor  to  punish  or  strike  him,  but  he  may  sus- 
pend or  confine  him,  and  shall  report  the  case  to  the  Secretary  of  the 
Navy,  or  commandant  of  a  squadron,  as  soon  as  he  arrives  in  port,  if  at 
sea,  or  if  in  port  in  ten  days,  in  order  that  a  court  martial  may  decide 
on  the  offence. 

6.  The  officer  who  commands  by  accident  in  the  captain  or  com- 
mander's absence  (unless  he  be  absent  for  a  time  by  leave)  shall  not 
order  any  correction  but  confinement,  and  upon  the  captain's  return  on 
board,  he  shall  then  give  an  account  of  his  reasons  for  so  doing. 

7.  The  captain  is  to  cause  the  articles  of  war  to  be  hung  up  in  some 
public  place  of  the  ship,  and  read  to  the  ship's  company  once  a  month. 

8.  Whenever  a  captain  shall  enter  or  enlist  a  seaman,  he  shall  take 
care  to  enter  on  his  books,  the  time  and  terms  of  his  entering,  in  order 
to  his  being  justly  paid. 

9.  The  captain  shall,  before  he  sails,  make  return  to  the  Secretary  of 
the  Navy  a  complete  list  of  all  his  officers  and  men,  with  the  time  and 
terms  of  their  entering,  and  during  his  cruise  or  station,  shall  keep  a 
true  account  of  the  desertion  or  death  of  any  of  them,  and  of  the  en- 
tering of  others,  and  after  the  expiration  of  the  time  for  which  they 
were  entered,  and  before  any  of  them  are  paid  off,  he  shall  make  return 
of  a  complete  list  of  the  same,  including  those  who  shall  remain  on 
board  his  ship. 

10.  The  men  shall,  at  their  request,  be  furnished  with  slops  that  are 
necessary,  by  order  of  the  captain,  and  the  amount  delivered  to  each 
man,  shall  be  regularly  returned  by  the  purser,  so  that  the  same  be 
stopped  out  of  his  pay. 


74  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

11.  All  officers  not  having  commissions  or  warrants,  (or  appointed 
commission  or  warrant  officers  for  the  time  being)  are  termed  petty, 
or  inferior  officers. 

12.  Whenever  any  inferior  officer,  seaman,  or  other  person,  be  turned 
over  into  the  ship  of  a  commander  other  than  the  one  with  whom  he 
entered,  he  is  not  to  be  rated  on  the  ship's  books,  in  a  worse  quality,  or 
lower  degree  or  station,  than  he  served  in  the  ship  he  was  removed 
from ;  and  for  the  guide  of  the  captain,  he  is  to  demand  from  the  com- 
mander of  the  ship  from  which  such  person  or  persons  were  turned 
over,  a  list,  under  his  hand,  of  his  or  their  names,  and  the  quality  in 
which  he  or  they  served. 

13.  Any  officer,  seaman  or  other  person,  entitled  to  wages  or  prize 
money,  may  have  the  same  paid  to  his  assignee,  provided  the  assign- 
ment be  attested  by  the  captain  and  the  purser ;  but  the  captain  or 
commander  of  every  vessel  in  the  service  of  the  United  States,  is  to  dis- 
courage his  crew  from  selling  any  part  of  their  wages  or  prize  money, 
and  never  to  attest  the  letter  of  attorney  until  he  is  satisfied  that  the 
same  is  not  granted  in  consideration  of  money  given  for  the  purchase 
of  wages,  or  shares  of  prize  money. 

14.  When  any  officer  or  other  person  dies,  the  captain  is  forthwith  to 
have  his  name  entered  on  the  books  of  the  ship,  in  order  to  the  wages 
being  forthwith  paid  to  his  executors  or  administrators. 

15.  A  convenient  place  shall  be  set  apart  for  the  sick  or  hurt  men,  to 
which  they  are  to  be  removed  with  their  hammocks  and  bedding,  when 
the  surgeon  shall  advise  the  same  to  be  necessary,  and  some  of  the  crew 
shall  be  appointed  to  attend  them,  and  keep  the  place  clean ; — cradles 
and  buckets  with  covers,  shall  be  made  for  their  use,  if  necessary. 

16.  All  ships  furnished  with  fishing  tackle,  being  in  such  places 
where  fish  is  to  be  had,  the  captain  is  to  employ  some  of  the  company 
in  fishing :  The  fish  to  be  daily  distributed  to  such  persons  as  are  sick, 
or  upon  recovery,  provided  the  surgeon  recommend  it,  and  the  surplus, 
by  turns,  amongst  the  messes  of  the  officers  and  seamen,  gratis,  without 
any  deduction  of  their  allowance  of  provisions  on  that  account. 

17.  It  is  left  to  the  discretion  of  commanders  of  squadrons,  to  shorten 
the  allowance  of  provisions  according  to  the  exigence  of  the  service, 
taking  care  that  the  men  be  punctually  paid  for  the  same — the  like, 
power  is  given  to  captains  of  ships  acting  singly,  where  it  is  deemed 
necessary,  and  if  there  should  be  a  want  of  pork,  the  captain  is  td 
order  three  pounds  of  beef  to  be  issued  in  lieu  of  two  pounds  of  pork. 


ACTS  OF  CONGRESS  75 

18.  If  any  ships  of  the  United  States  shall  happen  to  come  into  port 
in  want  of  provisions,  the  warrant  of  the  commander  of  the  squadron, 
or  of  a  captain  where  there  is  no  commander  of  a  squadron  present, 
shall  be  sufficient  to  procure  the  supply  of  the  quantity  wanted,  from 
the  agent,  or  navy  agent  at  such  port. 

19.  The  captains  are  frequently  to  cause  to  be  inspected  the  condi- 
tion of  the  provision,  and  if  the  bread  proves  damp,  to  have  it  aired 
upon  the  quarter  deck,  and  other  convenient  places,  and  in  case  of  the 
pickle  being  leaked  out  of  the  flesh  casks,  he  is  to  have  new  pickle! 
made  and  put  therein,  after  such  casks  are  repaired. 

20.  The  captain  shall  cause  the  purser  to  secure  the  clothes,  bedding 
and  other  things,  of  such  persons  as  shall  die  or  be  killed,  to  be  de- 
livered to  their  executors  or  administrators. 

21.  All  papers,  charter-parties,  bills  of  lading,  passports,  and  other 
writings  whatsoever,  found  on  board  any  ship  or  ships  which  shall  be 
taken,  shall  be  carefully  preserved  and  the  originals  sent  to  the  court 
of  justice  for  maritime  affairs,  appointed  or  to  be  appointed  for  judging 
concerning  such  prize  or  prizes,  and  if  any  person  or  persons  shall  wil- 
fully or  negligently  destroy  or  suffer  to  be  destroyed  any  such  paper  or 
papers,  he  or  they  so  offending  shall  forfeit  his  or  their  share  of  such 
prize  or  prizes,  and  suffer  such  other  punishment  as  they  shall  be  judged 
by  a  court  martial  to  deserve  ;  and  if  any  person  or  persons  shall  embez- 
zle or  steal,  or  take  away  any  cables,  anchors,  sails  or  any  of  the  ship's 
furniture,  or  any  of  the  powder,  arms,  ammunition,  or  provisions  of  any 
ship  belonging  to  the  United  States,  or  of  any  prize  taken  by  a  ship  or 
ships,  aforesaid,  or  maltreat  or  steal  the  effects  of  any  prisoner,  he  or 
they  so  offending  shall  suffer  such  punishment  as  a  court  martial  shall 
order. 

22.  When  in  sight  of  any  ship,  ships,  or  other  vessels  of  the  enemy, 
or  at  such  other  times  as  may  appear  necessary  to  prepare  for  an  en- 
gagement, the  captain  shall  order  all  things  in  his  ship  in  a  proper 
posture  for  fight,  and  shall,  in  his  own  person,  and  according  to  his  duty, 
heart  on,  and  encourage  the  inferior  oflficers  and  men  to  fight  courage- 
ously, and  not  to  behave  themselves  faintly  or  cry  for  quarters,  on  pain 
of  such  punishment  as  the  offence  shall  appear  to  deserve  for  his 
neglect. 

23.  Any  captain,  officer  or  other  person  who  shall  not  exert  himself, 
or  who  shall  basely  desert  his  duty  or  station  in  the  ship,  and  run  away 
while  the  enemy  is  in  sight,  or  in  time  of  action,  or  shall  entice  others 


76  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

to  do  so,  shall  suffer  death,  or  such  other  punishment  as  a  court  martial 
shall  inflict. 

24.  Any  officer,  seaman,  mariner  or  other  person  who  shall  disobey 
the  orders  of  his  superior,  or  begin,  excite,  cause  or  join  in  any  mutiny 
or  sedition  in  the  ship  to  which  he  belongs,  or  in  any  other  ship  or  ves- 
sel in  the  service  of  the  United  States,  on  any  pretence  whatsoever,  shall 
suffer  death,  or  such  other  punishment  as  a  court  martial  shall  direct ; 
and  further,  any  person  in  any  ship  or  vessel  belonging  to  the  service 
aforesaid,  who  shall  utter  any  words  of  sedition  and  mutiny,  or  en- 
deavour to  make  any  mutinous  assembly  on  any  pretence  whatsoever, 
shall  suffer  such  punishment  as  a  court  martial  shall  inflict. 

25.  None  shall  presume  to  quarrel  with  or  strike  his  superior  officer, 
on  pain  of  such  punishment  as  a  court  martial  shall  order  to  be  in- 
flicted. 

26.  If  any  person  shall  apprehend  he  has  just  cause  of  complaint,  he 
shall  quietly  and  decently  make  the  same  known  to  his  superior  officer, 
or  to  the  captain,  as  the  case  may  require,  who  shall  take  care  that 
justice  be  done  him. 

27 .  There  shall  be  no  quarreling  or  fighting  between  ship  mates  on 
board  any  ship  belonging  to  the  United  States,  nor  shall  there  be  used 
any  reproachful  or  provoking  speeches,  tending  to  make  quarrels  and 
disturbances,  on  pain  of  imprisonment,  or  of  such  punishment  as  the 
captain,  or  a  court  martial  shall  judge  proper  to  inflict. 

28.  If  any  person  shall  sleep  upon  his  watch,  or  negligently  perform 
the  duty  which  shall  be  enjoined  him  to  do,  he  shall  suffer  such  punish- 
ment as  the  captain,  or  a  court  martial  shall  inflict. 

29.  All  murder  shall  be  punished  with  death. 

30.  All  robbery  and  theft,  not  exceeding  twenty  dollars,  shall  be  pun- 
ished at  the  discretion  of  the  captain,  and  above  that  sum  as  a  court 
martial  shall  inflict. 

31.  Any  master  of  arms,  or  other  person  of  whom  the  like  duty  may 
be  required,  refusing  to  receive  such  prisoner  or  prisoners,  as  shall  be 
committed  to  his  charge,  or  having  received  them  shall  suffer  him  or 
them  to  escape,  or  dismiss  them  without  orders  from  his  captain,  the 
commander  in  chief  of  the  navy  or  the  commander  of  the  squadron,  for 
so  doing,  shall  suffer  in  his  or  their  stead  as  a  court  martial  shall  order 
and  direct. 

32.  The  captains,  officers  and  others  shall  use  their  utmost  endeavours 
to  detect,  apprehend,  and  bring  to  punishment  all  offenders,  and  shall  at 


ACTS  OF  CONGRESS  77 

all  times  readily  assist  all  officers  and  others  appointed  for  that  purpose, 
in  the  discharge  of  such  dut}-,  when  it  is  required,  on  pain  of  being  pro- 
ceeded against  and  punished  by  a  court  martial  at  discretion. 

33.  If  any  officer  whatsoever,  mariner,  marine  soldier,  or  other  per- 
son, belonging  to  any  ship  or  vessel  of  war  in  the  service  of  the  United 
States,  shall  give,  hold  or  entertain  intelligence,  to  or  with  any  enemy 
or  rebel,  without  leave  from  the  government,  commander  in  chief,  or  in 
case  of  a  single  ship,  from  his  captain,  every  such  person  so  offending, 
and  being  thereof  convicted  by  the  sentence  of  a  court  martial,  shall  be 
punished  with  death. 

34.  If  any  letter  or  message  from  an  enemy  or  a  rebel  be  conveyed  to 
any  officer,  mariner,  marine  or  other  person,  belonging  to  any  ship  or 
vessel  in  the  service  of  the  United  States,  and  the  person  as  aforesaid 
shall  not  within  twelve  hours,  having  opportunity  so  to  do,  acquaint  his 
superior  or  commander  in  chief  with  it ;  or  if  any  superior  officer  being 
acquainted  therewith,  shall  not  in  convenient  time  reveal  the  same  to 
the  commander  in  chief,  commander  of  a  squadron  or  other  proper 
officer,  appointed  to  take  cognizance  of  such  offence,  every  such  person 
so  offending,  and  being  convicted  thereof,  by  the  sentence  of  a  court 
martial,  shall  be  punished  with  death,  or  such  other  punishment  as  the 
nature  and  degree  of  the  offence  shall  deserve,  and  according  to  the 
sentence  of  a  court  martial. 

35.  All  spies,  and  all  persons  whatsoever  who  shall  come  or  be  found 
in  the  nature  of  spies,  to  bring  or  deliver  any  seducing  letter  or  message, 
from  an  enemy  or  rebel,  or  endeavour  to  corrupt  any  captain,  officer, 
mariner,  marine,  or  other  person  in  the  fleet,  to  betray  his  trust,  being 
convicted  of  any  such  offence  by  the  sentence  of  a  court  martial,  shall 
be  punished  with  death,  or  such  other  punishment  as  the  nature  and 
degree  of  the  offence  shall  deserve,  and  the  court  martial  shall  impose. 

36.  No  person  in  a  fleet,  or  in  a  single  ship  or  vessel,  shall  supply  an 
enemy  or  rebel  with  stores,  money,  victuals,  arms,  ammunition,  or  any 
kind  of  stores,  directly  or  indirectly,  upon  pain  of  death,  or  such  other 
punishment  as  a  court  martial  shall  think  fit  to  impose,  and  as  the  nature 
and  degree  of  the  crime  shall  deserve. 

Z7 .  Every  person  in  or  belonging  to  any  ship  or  vessel  in  the  service 
of  the  United  States,  who  shall  desert  or  run  away  with  any  vessel  or 
boat,  to  the  enemy  or  otherwise,  or  with  any  effects  of  the  United 
States,  whatsoever,  or  yield  up  the  same  cowardly  or  treacherously, 


78  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

shall  suffer  death,  or  such  other  punishment  as  a  court  martial  shall 
inflict. 

38.  The  officers  and  seamen,  &c.,  of  all  ships  appointed  for  convoy 
and  guard  of  merchantmen,  shall  diligently  attend  upon  that  charge 
without  delay,  according  to  their  instructions,  and  whosoever  shall  be 
faulty  therein,  shall  be  punished  as  a  court  martial  shall  direct. 

39.  If  any  captain,  commander  or  other  officer  of  any  ship  or  vessel 
in  the  service  of  the  United  States,  shall  receive  or  permit  on  board  his 
vessel  any  goods  or  merchandise,  other  than  for  the  sole  use  of  his  ves- 
sel, except  gold,  silver,  or  jewels,  and  except  the  goods  and  merchan- 
dise of  vessels  which  may  be  in  distress  or  shipwrecked,  or  in  imminent 
danger  of  being  shipwrecked  in  order  to  preserve  them  for  the  proper 
owner,  without  legal  orders  from  the  naval  department,  every  person 
so  offending  being  convicted  thereof,  by  the  sentence  of  a  court  martial, 
shall  be  cashiered,  and  be  for  ever  afterwards  rendered  incapable  to 
serve  in  any  place  or  office  in  the  navy  service  of  the  United  States. 

40.  There  shall  be  no  wasteful  expense  of  any  powder,  shot,  ammu- 
nition, or  other  stores  in  the  vessels  belonging  to  the  United  States,  nor 
any  embezzlement  thereof,  but  the  stores  and  provisions  shall  be  care- 
fully preserved,  upon  pain  of  such  punishment,  to  be  inflicted  upon  the 
offenders,  abettors,  buyers  and  receivers,  as  shall  be  by  a  court  martial 
found  just  in  that  behalf. 

41.  Every  person  in  the  navy  who  shall  unlawfully  burn  or  set  fire  to 
any  kind  of  public  property,  not  then  appertaining  to  an  enemy,  pirate 
or  rebel,  being  convicted  of  any  such  offence  by  the  sentence  of  a  court 
martial,  shall  suffer  death. 

42.  Care  shall  be  taken  in  steering  and  conducting  every  ship  belong- 
ing to  the  United  States,  so  that  through  wilfulness,  negligence,  or 
other  defaults,  no  ship  be  stranded  or  hazarded,  upon  pain  that  such  as 
shall  be  found  guilty  therein,  be  punished  as  the  offence,  by  a  court 
martial,  shall  be  judged  to  deserve. 

43.  Every  officer  or  other  person  in  the  navy,  who  shall  knowingly 
make  or  sign  a  false  muster,  or  procure  the  making  or  signing  thereof, 
or  shall  aid  or  abet  in  the  same,  shall  be  cashiered  and  rendered  inca- 
pable of  further  employment  in  the  navy  service  of  the  United  States, 
and  shall  forfeit  all  the  pay  and  subsistence  money  due  to  him. 

44.  Every  person  guilty  of  mutiny,  desertion  or  disobedience  to  his 
superior  officer  on  shore,  acting  in  the  proper  line  of  his  duty,  shall  be 
tried  by  a  court  martial,  and  suffer  the  like  punishment  for  every  such 


ACTS  OF  CONGRESS  79 

offence,  as  if  the  same  had  been  committed  at  sea,  on  board  any  ship  or 
vessel  of  war  in  the  service  of  the  United  States. 

45.  If  any  person  belonging  to  any  ship  or  vessel  of  war  in  the  ser- 
vice of  the  United  States,  shall,  when  on  shore,  on  duty,  or  otherwise, 
plunder,  abuse,  or  maltreat  any  inhabitant,  or  injure  his  property  in 
any  way,  such  person  shall  be  punished  as  a  court  martial  shall  direct. 

46.  All  faults,  disorders  and  misdemeanors  which  shall  be  committed 
on  board  any  ship  belonging  to  the  United  States,  and  which  are  not 
herein  mentioned,  shall  be  punished  according  to  the  laws  and  customs 
in  such  cases  at  sea. 

47.  No  court  martial,  to  be  held  or  appointed  by  virtue  of  this  act, 
shall  consist  of  more  than  thirteen,  nor  less  than  five  persons,  to  be 
composed  of  such  commanders  of  squadrons,  captains  and  sea  lieu- 
tenants, as  are  then  and  there  present,  and  as  are  next  in  seniority  to 
the  officer  who  presides ;  but  no  lieutenant  shall  sit  on  a  court  martial, 
held  on  a  captain,  or  a  junior  lieutenant  on  that  of  a  senior. 

48.  Every  member  of  a  court  martial  shall  take  the  following  oath : 
"I,  A.  B.  do  swear,  that  I  will  well  and  truly  try  and  impartially  deter- 
mine the  cause  of  the  prisoner  now  to  be  tried,  according  to  the  rules 
of  the  navy  of  the  United  States.  So  help  me  God."  Which  oath  shall 
be  administered  by  the  president  to  the  other  members,  and  the  presi- 
dent himself  shall  be  sworn  by  the  officer  next  in  rank;  and  as  soon  as 
the  above  oath  shall  have  been  administered,  the  president  of  the  court 
is  required  to  administer  to  the  judge  advocate,  or  person  officiating  as 
such,  an  oath  in  the  following  words:  "I,  A.  B.  do  swear,  that  I 
will  not,  upon  any  account,  at  any  time  whatsoever,  disclose  or  dis- 
cover the  vote  or  opinion  of  any  particular  member  of  this  court 
martial,  unless  thereto  required  by  an  act  of  Congress.  So  help 
me  God."  And  all  the  witnesses,  before  they  be  admitted  to  give  evi- 
dence, shall  take  the  following  oath:  "I,  A.  B.  do  swear,  that  the 
evidence  I  shall  give  in  the  cause  now  in  hearing,  shall  be  the  truth, 
the  whole  truth,  and  nothing  but  the  truth.     So  help  me  God." 

49.  The  sentence  of  a  court  martial  for  any  capital  offence  shall  not 
be  put  in  execution,  until  it  be  confirmed  by  the  commander  in  chief  of 
the  fleet.  And  it  shall  be  the  duty  of  the  president  of  every  court 
martial,  to  transmit  to  the  commander  in  chief  of  the  fleet,  and  to  the 
head  of  the  Navy  department,  every  sentence  which  shall  be  given, 
with  a  summary  of  the  evidence  and  proceedings  thereon,  as  soon  as 
may  be. 


80  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

50.  The  commander  in  chief  of  the  fleet,  for  the  time  being,  shall 
have  power  to  pardon  and  remit  any  sentence  of  death,  in  consequence 
of  any  of  the  aforementioned  articles. 

Sec.  2.  And  it  is  hereby  further  enacted.  That  if  any  person  in  the 
navy  service,  being  called  upon  to  give  evidence  at  any  court  martial, 
shall  refuse  to  give  his  evidence  upon  oath,  or  shall  prevaricate  in  his 
evidence,  or  behave  with  contempt  to  the  court,  it  shall  and  may  be 
lawful  for  such  court  martial  to  punish  such  offender  by  imprisonment, 
at  the  discretion  of  the  court ;  such  imprisonment,  in  no  case,  to  con- 
tinue longer  than  three  months ;  and  that  all  and  every  person  and  per- 
sons, who  shall  commit  any  wilful  perjury  in  any  evidence  or  examina- 
tion upon  oath  at  such  court  martial,  or  who  shall  corruptly  procure  or 
suborn  any  person  to  commit  such  wilful  perjury,  shall  and  may  be 
prosecuted  in  any  of  the  courts  of  the  United  States,  by  indictment  or 
information.  And  all  and  every  person,  lawfully  convicted  upon  any 
such  indictment  or  information,  shall  be  punished  with  such  pains  and 
penalties  as  are  inflicted  for  the  like  offences  by  the  laws  therein  pro- 
vided. 

Sec.  3.  And  it  is  hereby  further  enacted,  by  the  authority  aforesaid, 
That  in  all  cases  where  the  crews  of  the  ships  or  vessels  of  the  United 
States  shall  be  separated  from  their  vessels,  by  the  latter  being  wrecked, 
lost,  or  destroyed,  all  the  command,  power  and  authority  given  to  the 
officers  of  such  ships  or  vessels,  shall  remain  and  be  in  full  force  as 
effectually  as  if  such  ship  or  vessel  was  not  so  wrecked,  lost  or  de- 
stroyed, until  they  shall  be  regularly  discharged  from  the  service  of  the 
United  States,  or  removed  into  some  other  of  its  said  ships,  or  until  a 
court  martial  shall  be  held,  to  inquire  into  such  loss  of  the  said  ship  or 
vessel ;  and  if  upon  inquiry  it  shall  appear  by  the  sentence  of  the  court 
martial,  that  all  or  any  of  the  officers,  seamen,  marines,  and  others  of 
the  said  ship  or  vessel,  did  their  utmost  to  preserve,  get  off,  or  recover 
the  said  ship  or  vessel,  and  after  the  loss  thereof  did  behave  themselves 
obediently  to  their  superior  officers,  according  to  the  discipline  of  the 
navy,  and  the  said  articles  and  orders  herein  before  established,  then 
all  the  pay  and  wages  of  the  said  officers  and  seamen,  or  such  of 
them  as  shall  have  done  their  duty  as  aforesaid,  shall  continue  and  go 
on,  and  be  paid  to  the  time  of  their  discharge  or  death ;  and  every  such 
officer  or  seaman,  who  after  the  wreck  or  loss  of  his  ship  or  vessel, 
shall  act  contrary  to  the  discipline  of  the  navy,  or  the  articles  herein 
before  established,  or  any  of  them,  shall  be  sentenced  by  the  said  court 


ACTS  OF  CONGRESS  81 

martial,  and  be  punished,  as  if  the  ship  to  which  he  did  belong  was  not 
so  wrecked  or  destroyed. 

Sec.  4.  And  be  it  further  enacted.  That  all  the  pay  and  wages  of 
such  ofificers  and  seamen  of  any  of  the  ships  of  the  United  States  as 
are  taken  by  the  enemy,  and  upon  inquiry  at  a  court  martial,  shall  ap- 
pear by  the  sentence  of  the  said  court,  to  have  done  their  utmost  to 
defend  the  ship  or  ships,  and  since  the  taking  thereof,  to  have  behaved 
themselves  obediently  to  their  superior  ofificers,  according  to  the  dis- 
cipline of  the  navy,  and  the  said  articles  and  orders,  herein  before  es- 
tablished, shall  continue  and  go  on  as  aforesaid,  until  they  be  exchanged 
and  discharged,  or  until  they  shall  die,  whichever  may  first  happen: 
Provided  akvays,  that  persons  flying  from  justice  shall  be  tried  and 
punished  for  so  doing. 

Sec.  5.  And  be  it  further  enacted.  That  all  captured  national  ships 
or  vessels  of  war  shall  be  the  property  of  the  United  States — all  other 
ships  or  vessels,  being  of  superior  force  to  the  vessel  making  the  cap- 
ture, in  men  or  in  guns,  shall  be  the  sole  property  of  the  captors — and 
all  ships  or  vessels  of  inferior  force  shall  be  divided  equally  between 
the  United  States  and  the  officers  and  men  of  the  vessel  making  the 
capture. 

Sec.  6.  And  be  it  further  enacted,  That  the  produce  of  prizes  taken 
by  the  ships  of  the  United  States,  and  bounty  for  taking  the  ships  of 
the  enemy,  be  proportioned  and  distributed  in  the  manner  following, 
to  wit : — 

1.  To  the  captain  actually  on  board  at  the  time  of  taking  any  prize, 
being  other  than  a  public  or  national  vessel,  or  ship  of  war,  three  twen- 
tieths of  that  proportion  of  the  proceeds  belonging  to  the  captors. 

2.  If  such  captain  or  captains  be  under  the  immediate  command  of 
a  commander  in  chief,  or  commander  of  a  squadron,  having  a  captain 
on  board,  such  commander  in  chief,  or  commander  of  a  squadron,  to 
have  one  of  the  said  twentieth  parts,  and  the  captain  taking  the  prize, 
the  other  two  twentieth  parts. 

3.  To  the  sea  lieutenants  and  sailing-master,  two  twentieths. 

4.  To  marine  officers,  the  surgeon,  purser,  boatswain,  gunner,  car- 
penter, master's  mate  and  chaplain,  two  twentieths. 

5.  To  midshipmen,  surgeon's  mates,  captain's  clerks,  clergyman  or 
schoolmaster,  boatswain's  mates,  gunner's  mates,  carpenter's  mates, 
ship's  steward,  sail-maker,  master  at  arms,  armorer,  and  cockswain, 
three  twentieths. 


82  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

6.  Gunner's  yeoman,  boatswain's  yeoman,  quartermasters,  quarter- 
gunners,  cooper,  sail-maker's  mates,  sergeant  of  marines,  corporal  of 
marines,  drummer  and  fifer  and  extra  petty  officers,  three  twentieths. 

7.  To  seamen,  ordinary  seamen,  marines  and  boys,  seven  twentieths. 

8.  Any  officer  on  board  having  more  posts  than  one,  is  only  entitled 
to  the  share  belonging  to  his  superior  office,  according  to  the  regulations 
aforesaid. 

9.  Whenever  one  or  more  ships  of  the  United  States  are  in  sight,  at 
the  time  of  any  one  or  more  other  ships  as  aforesaid  are  taking  a  prize 
or  prizes,  or  being  engaged  with  an  enemy,  and  they  shall  all  be  so  in 
sight,  when  the  enemy  shall  strike  or  surrender,  they  shall  share 
equally,  according  to  the  number  of  guns  and  men  on  board  of  each 
ship  so  in  sight — but  no  privateer  or  armed  ship,  being  in  sight  of  a 
national  ship  of  war,  at  the  taking  of  any  prize,  shall  be  entitled  to  any 
share  in  such  prize  or  prizes. 

10.  Commanders  of  ships  of  war  taking  any  prize,  are  to  transmit, 
as  soon  as  possible,  to  the  naval  department,  a  true  list  of  the  officers 
and  men  actually  on  board  at  the  taking  of  such  prize,  inserting  therein 
the  quality  of  every  person's  rating ;  and  the  department  aforesaid  is 
to  examine  the  said  list  by  the  ship's  muster  book,  to  see  their  agree- 
ment, and  is  to  grant  certificates  of  the  truth  of  such  list  transmitted, 
in  order  that  the  agents  appointed  by  the  captors,  make  payment  of  the 
shares,  agreeably  to  this  act. 

11.  In  order  to  define  the  rights  and  privileges  of  commanders  in 
chief,  commanders  of  squadrons  and  captains,  in  relation  to  captures — 
No  commander  in  chief,  or  commander  of  a  squadron,  shall  be  entitled 
to  receive  any  share  of  prizes  taken  by  the  ships  of  war  of  the  United 
States  that  are  not  put  under  his  immediate  command,  nor  of  such 
prizes  as  may  have  been  taken  previous  to  such  ships  being  placed 

\under  his  command,  and  until  they  have  acted  under  his  immediate 
orders ;  nor  shall  a  commander  in  chief,  or  commander  of  a  squadron, 
returning  home  from  any  station  where  he  had  the  command,  have  any 
share  in  prizes  taken  by  ships  left  on  such  station,  after  he  has  got  out 
of  the  limits  of  his  said  command. 

12.  Captains,  sailing  specially  under  orders  from  the  navy  depart- 
ment, are  clearly  to  be  understood  as  acting  separately  from  any  su- 
perior officer. 

13.  The  bounty  given  by  the  United  States  on  any  national  ship  of 
war,  taken  from  the  enemy  and  brought  into  port,  shall  be  for  every 


ACTS  OF  CONGRESS  83 

cannon  mounted,  carrying  a  ball  of  twenty-four  pounds,  or  upwards, 
two  hundred  dollars ;  for  every  cannon  carrying  a  ball  of  eighteen 
pounds,  one  hundred  and  fifty  dollars ;  for  every  cannon  carrying  a  ball 
of  twelve  pounds,  one  hundred  dollars ;  and  for  every  cannon  carrying 
a  ball  of  nine  pounds,  seventy-five  dollars ;  for  every  smaller  cannon, 
fifty  dollars ;  and  for  every  officer  and  man  taken  on  board,  forty  dol- 
lars ;  which  sums  are  to  be  divided  agreeably  to  the  foregoing  articles. 

Sec.  7.  And  be  it  further  enacted,  That  for  the  ships  or  goods  be- 
longing to  the  citizens  of  the  United  States,  or  to  the  citizens  or  sub- 
jects of  any  nation,  in  amity  with  the  United  States,  if  retaken  from 
the  enemy  within  twenty-four  hours,  the  owners  are  to  allow  one  eighth 
part  of  the  whole  value  for  salvage,  if  after  twenty-four  hours,  and 
under  forty-eight,  one  fifth  thereof,  if  above  that  and  under  ninety-six 
hours,  one  third  part  thereof,  and  if  above  that,  one  half,  all  of  which 
is  to  be  paid  without  any  deduction  whatsoever,  agreeable  to  the  arti- 
cles herein  before  mentioned. 

Sec.  8.  And  be  it  further  enacted,  That  every  officer,  seaman  or 
mariner  disabled  in  the  line  of  his  duty,  shall  be  entitled  to  receive  for 
his  own  life,  and  the  life  of  his  wife,  if  a  married  man,  at  the  time  of 
receiving  the  wound,  one  half  his  monthly  pay. 

Sec.  9.  And  be  it  further  enacted,  That  all  the  money  accruing,  or 
which  has  already  accrued  from  the  sale  of  prizes,  shall  be  and  remain 
for  ever  a  fund  for  the  payment  of  the  half  pay  to  the  officers  and  sea- 
men who  may  be  entitled  to  receive  the  same — and  if  the  said  fund 
shall  be  insufficient  for  this  purpose,  the  public  faith  is  hereby  pledged 
to  make  up  the  deficiency.  But  if  it  should  be  more  than  sufficient, 
the  surplus  shall  be  applied  as  Congress  may  hereafter  direct  by  law,  to 
the  making  of  further  provision  for  the  comfort  of  the  disabled  officers 
seamen  and  mariners,  and  for  such  as  may  not  be  disabled,  who  may 
merit  by  their  bravery,  or  their  long  and  faithful  services,  the  grati- 
tude of  their  country. 

Sec.  10.  And  be  it  further  enacted.  That  the  said  fund  shall  be 
under  the  management  and  direction  of  the  Secretary  of  the  Navy,  the 
Secretary  of  the  Treasury  and  the  Secretary  at  War  for  the  time  be- 
ing, who  are  hereby  authorized  to  receive  all  such  sums  as  the  United 
States  may  be  entitled  to,  from  the  sale  of  prizes,  and  to  invest  the 
same,  and  the  interest  arising  therefrom,  in  such  of  the  six  per  cent.,  or 
other  stock  of  the  United  States,  as  a  majority  of  them  from  time  to 
time  shall  determine  to  be  most  advantageous ;  and  it  shall  be  the  duty 


84  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

of  the  said  commissioners  to  lay  before  Congress,  every  year,  in  the 
first  week  of  their  annual  meeting,  a  minute  and  correct  statement  of 
their  proceedings,  in  relation  to  the  management  of  said  fund. 

Sec.  11.  And  be  it  further  enacted,  That  no  rules  or  regulations 
made  by  any  commander  in  chief,  or  captain,  in  the  service  of  the 
United  States,  for  the  stationing,  designating  of  duty  and  government 
of  the  fleet,  or  any  of  the  crews  of  any  ship  of  war,  shall  be  at  variance 
with  this  act,  but  shall  be  strictly  conformable  thereto ;  and  that  every 
commander  in  chief  and  captain,  in  making  private  rules  and  regula- 
tions, and  designating  the  duty  of  his  officers,  shall  keep  in  view  also 
the  custom  and  usage  of  the  sea  service  most  common  to  our  nation. 

Approved,  March  2,  1799. 


An  Act  further  to  suspend  the  commercial  intercourse  between  the 
United  States  and  France,  and  the  dependencies  thereof^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That 
all  commercial  intercourse  between  any  person  or  persons  resident 
within  the  United  States  or  under  their  protection,  and  any  person  or 
persons  resident  within  the  territories  of  the  French  Republic,  or  any 
of  the  dependencies  thereof,  shall  be,  and  from  and  after  the  second 
day  of  March  next,  is  hereby  prohibited  and  farther  suspended,  ex- 
cepting only  in  the  cases  hereinafter  provided.  And  any  ship  or  vessel, 
owned,  hired,  or  employed  wholly  or  in  part  by  any  person  or  persons 
resident  within  the  United  States,  or  any  citizen  or  citizens  thereof 
resident  elsewhere,  and  sailing  therefrom  after  that  day,  which  con- 
trary to  the  intent  hereof,  shall  be  voluntarily  carried,  or  shall  be 
destined  or  permitted  to  proceed,  or  shall  be  sold,  bartered,  entrusted 
or  transferred,  for  the  purpose  that  she  may  proceed,  whether  directly 
or  from  any  intermediate  port  or  place,  to  any  port  or  place  within  the 
territories  of  that  Republic,  or  any  of  the  dependencies  thereof ;  or 
shall  be  engaged  in  any  traffic  or  commerce,  by  or  for  any  person  resi- 
dent within  the  territories  of  that  Republic,  or  within  any  of  the 
dependencies  thereof  ;  and  also  any  cargo  which  shall  be  found  on  board 
of  such  ship  or  vessel,  when  detected  and  interrupted  in  such  unlawful 


1  Statutes  at  Large,  vol.  H,  p.  7. 


ACTS  OF  CONGRESS  85 

purpose,  or  at  her  return  from  such  voyage  to  the  United  States,  shall 
be  wholly  forfeited,  and  may  be  seized  and  condemned  in  any  court 
of  the  United  States,  having  competent  jurisdiction. 

Sec.  2.  And  be  it  further  enacted.  That  excepting  for  foreign  ships 
or  vessels  owned,  hired,  and  employed  by  persons  permanently  re- 
siding in  Europe,  and  commanded  and  wholly  navigated  by  foreigners, 
no  clearance  for  a  foreign  voyage  shall  be  granted  to  any  ship  or 
vessel  whatever,  until  the  owner  or  the  employer  for  the  voyage,  or 
if  not  resident  within  the  district  where  the  clearance  shall  be  required, 
his  factor  or  agent,  with  the  master  and  one  or  more  sufficient  surety 
or  sureties,  to  the  satisfaction  of  the  collector  of  the  district,  shall  give 
bond  to  the  United  States,  such  owner,  employer,  or  factor,  with  the 
master,  in  a  sum  equal  to  the  value  of  the  vessel,  and  of  one-third 
of  her  cargo ;  and  such  surety  or  sureties  in  a  Hke  sum,  when  it  shall 
not  exceed  ten  thousand  dollars;  and  if  it  shall  exceed,  then  in  that 
sum,  with  condition  that  the  ship  or  vessel  for  which  a  clearance  shall 
be  required,  is  actually  destined,  and  shall  proceed  to  some  port  or 
place  without  the  limits  or  jurisdiction  of  the  French  Republic,  or 
any  of  the  dependencies  thereof,  and  during  the  intended  voyage  shall 
not  be  voluntarily  carried,  or  permitted  to  proceed  or  sold,  entrusted 
or  transferred,  with  the  purpose  that  she  may  proceed  whether  di- 
rectly, or  from  any  intermediate  port  or  place,  to  any  port  or  place 
within  the  territories  of  that  Republic,  or  any  of  the  dependencies 
thereof ;  and  shall  not,  at  any  such  port  or  place,  voluntarily  deliver 
or  unlade  any  part  of  such  cargo;  and  if  compelled  by  distress  of 
weather,  or  taken  by  force  into  any  such  port  or  place,  will  not  there 
receive  on  board  of  such  ship  or  vessel  any  goods,  produce,  or  mer- 
chandise, other  than  necessary  sea  stores ;  and  generally,  that  such 
ship  or  vessel  shall  not  be  employed  in  any  traffic  or  commerce  with  or 
for  any  person  resident  within  the  territory  of  the  French  Republic, 
or  any  of  the  dependencies  thereof. 

Sec.  3.  Provided,  and  be  it  further  enacted,  That  when  any  ship  or 
vessel  which  shall  obtain  a  clearance  for  a  foreign  voyage,  after  a 
bond  shall  be  given  as  aforesaid,  shall  be  compelled  by  distress  of 
weather,  or  other  casualty  endangering  the  safety  of  such  ship  or  ves- 
sel, or  of  the  mariners  on  board  the  same,  or  shall  be  taken  by  any 
armed  vessel,  or  other  superior  force,  into  any  port  or  place  within 
the  territories  of  the  French  Republic,  or  any  of  the  dependencies 
thereof,  and  shall  there  necessarily  unlade  and  deliver,  or  shall  be  de- 


86  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

prived  of  any  cargo  then  on  board,  then,  and  in  such  case,  the  master 
or  other  person  having  charge  of  such  ship  or  vessel,  may  receive  com- 
pensation or  payment  in  bills  of  exchange,  or  in  money  or  bullion,  for 
such  cargo,  but  not  otherwise,  and  shall  not  be  understood  thereby  to 
contravene  this  law,  or  to  incure  a  forfeiture  of  the  said  bond. 

Sec.  4.  And  be  it  further  enacted.  That  no  ship  or  vessel  coming 
from  any  port  or  place  within  the  territories  of  the  French  Republic, 
or  any  of  the  dependencies  thereof,  whether  with  or  without  a  cargo, 
or  from  any  other  port  or  place,  with  a  cargo  on  board  obtained  for, 
or  laden  on  board  of  such  vessel  at  any  port  or  place  within  the  said 
territories  or  dependencies,  which  shall  arrive  within  the  Hmits  of  the 
United  States  after  the  said  second  day  of  March  next,  shall  be  ad- 
mitted to  an  entry  with  the  collector  of  any  district;  and  each  and 
every  such  ship  or  vessel  which  shall  arrive  as  aforesaid,  having  on 
board  any  goods,  wares  or  merchandise,  destined  to  be  deHvered  within 
the  United  States,  contrary  to  the  intent  of  this  act,  or  which  shall 
have  otherwise  contravened  the  same,  together  with  the  cargo  which 
shall  be  found  on  board,  shall  be  forfeited,  and  may  be  seized  and 
condemned  in  any  court  of  the  United  States  having  competent  juris- 
diction :  Provided,  that  nothing  herein  contained  shall  be  construed  to 
prohibit  the  entry  of  any  vessel  having  a  passport  granted  under  the 
authority  of  the  French  Republic,  and  solely  employed  for  purposes 
of  political  or  national  intercourse  with  the  government  of  the  United 
States,  and  not  in  any  commercial  intercourse,  and  which  shall  be  re- 
ceived, and  permitted  by  the  President  of  the  United  States  to  remain 
within  the  same :  And  provided  also,  that  until  the  first  day  of  August 
next,  and  no  longer,  any  ship  or  vessel,  wholly  owned  or  employed  by 
a  foreigner,  other  than  any  person  resident  in  France,  or  in  any  of  the 
dependencies  of  the  French  Republic,  and  which  coming  therefrom 
shall  be  destined  to  the  United  States,  and  shall  arrive  within  the  same, 
not  having  otherwise  contravened  this  act,  shall  be  required  and  per- 
mitted to  depart  therefrom,  and  in  case  she  shall  accordingly  de- 
part, without  any  unreasonable  delay,  and  without  delivery,  or  at- 
tempting to  deliver,  any  cargo  or  lading  within  the  United  States,  such 
ship  or  vessel,  or  any  cargo  which  may  be  on  board  the  same,  shall  not 
be  liable  to  the  forfeiture  aforesaid. 

Sec.  5.  And  be  it  further  enacted,  That  if  any  ship  or  vessel,  coming 
from  any  port  or  place  within  the  territories  of  the  French  Republic, 


ACTS  OF  CONGRESS  87 

or  any  of  the  dependencies  thereof,  or  with  any  cargo  there  obtained 
on  board,  but  not  destined  to  any  port  or  place  within  the  United 
States,  shall  be  compelled  by  distress  of  weather,  or  other  necessity, 
to  put  into  any  port  or  place  within  the  limits  of  the  United  States, 
such  ship  or  vessel  shall  be  there  hospitably  received  in  the  manner 
prescribed  by  the  act,  intituled  "An  act  to  regulate  the  collection  of 
duties  on  imports  and  tonnage" ;  and  shall  be  permitted  to  make  such 
repairs,  and  to  obtain  such  supplies  as  shall  be  necessary  to  enable  her 
to  proceed  according  to  her  destination ;  and  such  repairs  and  supplies 
being  obtained,  shall  be  thereafter  required  and  permitted  to  depart. 
But  if  such  ship  or  vessel  shall  not  conform  to  the  regulations  pre- 
scribed by  the  act  last  mentioned,  or  shall  unlade  any  part  of  her  cargo, 
or  shall  take  on  board  any  cargo  or  supplies  whatever,  without  the 
permit  of  the  collector  of  the  district  previously  obtained  therefor,  or 
shall  refuse,  or  unreasonably  delay  to  depart  from  and  out  of  the 
United  States,  after  having  received  a  written  notice  to  depart,  which 
such  collector  may,  and  shall  give,  as  soon  as  such  ship  or  vessel  shall  be 
fit  for  sea;  or  having  departed  shall  return  to  the  United  States,  not 
being  compelled  thereto  by  further  distress  or  necessity,  in  each  and 
every  such  case,  such  ship  or  vessel  and  her  cargo  shall  be  forfeited 
and  may  be  seized,  and  condemned  in  any  court  of  the  United  States 
having  competent  jurisdiction. 

Sec.  6  And  be  it  further  enacted.  That  at  any  time  after  the  passing 
of  this  act,  it  shall  be  lawful  for  the  President  of  the  United  States, 
by  his  order  to  remit  and  discontinue  for  the  time  being,  whenever  he 
shall  deem  it  expedient,  and  for  the  interest  of  the  United  States,  all 
or  any  of  the  restraints  and  prohibitions  imposed  by  this  act,  in  re- 
spect to  the  territories  of  the  French  Republic,  or  to  any  island,  port 
or  place  belonging  to  the  said  Republic,  with  which  in  his  opinion  a 
commercial  intercourse  may  be  safely  renewed ;  and  also  it  shall  be 
lawful  for  the  President  of  the  United  States,  whenever  he  shall 
afterwards  deem  it  expedient,  to  revoke  such  order,  and  hereby  to 
re-establish  such  restraints  and  prohibitions.  And  the  President  of  the 
United  States  shall  be,  and  he  is  hereby  authorized,  to  make  procla- 
mation thereof  accordingly. 

Sec.  7.  And  be  it  further  enacted,  That  the  whole  of  the  island  of 
Hispaniola  shall  for  the  purposes  of  this  act  be  considered  as  a  de- 
pendency of  the  French  Republic:  Provided,  that  nothing  herein 
contained  shall  be  deemed  to  repeal  or  annul  in  any  part,  the  order  or 


88  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

proclamation  of  the  President  of  the  United  States,  heretofore  is- 
sued for  permitting  commercial  intercourse  with  certain  ports  of  that' 
island. 

Sec.  8.  And  be  it  further  enacted,  That  it  shall  be  lawful  for  the 
President  of  the  United  States,  to  give  instructions  to  the  public  armed 
vessels  of  the  United  States,  to  stop  and  examine  any  ship  or  vessel  of 
the  United  States  on  the  high  sea,  which  there  may  be  reason  to  sus- 
pect to  be  engaged  in  any  traffic  or  commerce  contrary  to  this  act,  and 
if  upon  examination,  it  shall  appear  that  such  ship  or  vessel  is  bound 
or  sailing  to,  or  from  any  port  or  place,  contrary  to  the  true  intent 
and  meaning  of  this  act,  it  shall  be  the  duty  of  the  commander  of 
such  public  armed  vessel,  to  seize  every  ship  or  vessel  engaged  in 
such  illicit  commerce,  and  send  the  same  to  the  nearest  convenient  port 
of  the  United  States,  to  be  there  prosecuted  in  due  course  of  law,  and 
held  liable  to  the  penalties  and  forfeitures  provided  by  this  act. 

Sec.  9.  And  he  it  further  enacted,  That  all  penalties  and  forfeitures 
incurred  by  force  of  this  act,  shall,  and  may  be  examined,  mitigated 
and  remitted  in  like  manner,  and  under  the  like  conditions,  regulations 
and  restrictions,  as  are  prescribed,  authorized  and  directed  by  the  act, 
intituled  "An  act  to  provide  for  mitigating,  or  remitting,  the  for- 
feitures, penalties  and  disabilities  accruing  in  certain  cases  therein 
mentioned" ;  and  all  penalties  and  forfeitures,  which  may  be  recovered 
in  pursuance  of  this  act  in  consequence  of  any  seizure  made  by  the 
commander  of  any  public  armed  vessel  of  the  United  States,  shall  be 
distributed  according  to  the  rules  prescribed  by  the  act,  intituled  "An 
act  for  the  government  of  the  navy  of  the  United  States"  ;  and  all  other 
penalties  arising  under  this  act,  and  which  may  be  recovered,  shall  be 
distributed  and  accounted  for  in  the  manner  prescribed  by  the  act, 
intituled  "An  act  to  regulate  the  collection  of  duties  on  imports  and 
tonnage." 

Sec.  10.  And  he  it  further  enacted,  That  nothing  contained  in  this 
act  shall  extend  to  any  ship  or  vessel  to  which  the  President  of  the 
United  States  shall  grant  a  permission  to  enter  and  clear ;  provided  such 
ship  or  vessel  shall  be  solely  employed,  pursuant  to  such  permission,  for 
purposes  of  national  intercourse ;  and  shall  not  be  permitted  to  pro- 
ceed with,  or  to  bring  to  the  United  States  any  cargo  or  lading  what- 
ever other  than  necessary  sea-stores. 

Sec.  11.  And  he  it  further  enacted.  That  the  act,  intituled  "An 
act  further  to  suspend  the  commercial  intercourse  between  the  United 


ACTS  OF  CONGRESS  89 

States  and  France,  and  the  dependencies  thereof,"  shall  be,  and  is 
hereby  continued  and  shall  be  taken  to  be  in  force  in  respect  to  all 
offences,  which  shall  have  been  committed  against  the  same,  before  the 
expiration  thereof ;  and  to  the  intent  that  all  seizures,  forfeitures  and 
penalties  arising  upon  such  oflFences,  may  be  had,  sued  for,  prosecuted 
and  recovered,  any  limitation  of  the  said  act  to  the  contrary  hereof 
notwithstanding. 

Sec.  12.  And  be  it  further  enacted,  That  this  act  shall  be  and  remain 
in  force  until  the  third  day  of  March,  one  thousand  eight  hundred 
and  one :  Provided,  however,  the  expiration  thereof  shall  not  prevent 
or  defeat  any  seizure,  or  prosecution  for  a  forfeiture  incurred  under 
this  act,  and  during  the  continuance  thereof. 

Approved,  February  27,  1800. 


An  Act  providing  for  Salvage  in  cases  of  Recapture^ 

Section  1.  Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assembled,  That 
when  any  vessel  other  than  a  vessel  of  war  or  privateer,  or  when  any 
goods  which  shall  hereafter  be  taken  as  prize  by  any  vessel,  acting 
under  authority  from  the  government  of  the  United  States,  shall  ap- 
pear to  have  before  belonged  to  any  person  or  persons,  resident  within 
or  under  the  protection  of  the  United  States,  and  to  have  been  taken 
by  an  enemy  of  the  United  States,  or  under  authority,  or  pretence  of 
authority,  from  any  prince,  government  or  state,  against  which  the 
United  States  have  authorized,  or  shall  authorize,  defence  or  reprisals, 
such  vessel  or  goods  not  having  been  condemned  as  prize  by  compe- 
tent authority  before  the  recapture  thereof,  the  same  shall  be  restored 
to  the  former  owner  or  owners  thereof,  he  or  they  paying  for  and  in 
lieu  of  salvage,  if  retaken  by  a  public  vessel  of  the  United  States, 
one  eighth  part,  and  if  retaken  by  a  private  vessel  of  the  United  States, 
one  sixth  part,  of  the  true  value  of  the  vessel  or  goods  so  to  be  re- 
stored, allowing  and  excepting  all  imposts  and  public  duties  to  which 
the  same  may  be  liable.  And  if  the  vessel  so  retaken  shall  appear  to 
have  been  set  forth  and  armed  as  a  vessel  of  war,  before  such  capture 


1  Statutes  at  Large,  vol.  II,  p.  16. 


90  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

or  afterwards,  and  before  the  retaking  thereof  as  aforesaid,  the 
former  owner  or  owners,  on  the  restoration  thereof,  shall  be  adjudged 
to  pay  for  and  in  lieu  of  salvage,  one  moiety  of  the  true  value  of  such 
vessel  of  war,  or  privateer. 

Sec.  2.  And  be  it  further  enacted,  That  when  any  vessel  or  goods, 
which  shall  hereafter  be  taken  as  prize,  by  any  vessel  acting  under 
authority  from  the  government  of  the  United  States,  shall  appear  to 
have  before  belonged  to  the  United  States  and  to  have  been  taken  by 
an  enemy  of  the  United  States,  or  under  authority,  or  pretence  of 
authority  from  any  prince,  government  or  state,  against  which  the 
United  States  have  authorized,  or  shall  authorize,  defence  or  re- 
prisals, such  public  vessel  not  having  been  condemned  as  prize  by 
competent  authority  before  the  recapture  thereof,  the  same  shall  be 
restored  to  the  United  States.  And  for  and  in  lieu  of  salvage,  there 
shall  be  paid  from  the  treasury  of  the  United  States,  pursuant  to  the 
final  decree  which  shall  be  made  in  such  case  by  any  court  of  the 
United  States,  having  competent  jurisdiction  thereof,  to  the  parties 
who  shall  be  thereby  entitled  to  receive  the  same,  for  the  recapture 
as  aforesaid,  of  an  unarmed  vessel,  or  any  goods  therein,  one  sixth 
part  of  the  true  value  thereof,  when  made  by  a  private  vessel  of  the 
United  States,  and  one  twelfth  part  of  such  value  when  the  recapture 
shall  be  made  by  a  public  armed  vessel  of  the  United  States ;  and  for 
the  recapture  as  aforesaid  of  a  public  armed  vessel,  or  any  goods 
therein,  one  moiety  of  the  true  value  thereof,  when  made  by  a  private 
vessel  of  the  United  States,  and  one  fourth  part  of  such  value,  when 
such  recapture  shall  be  made  by  a  public  armed  vessel  of  the  United 
States. 

Sec.  3.  And  be  it  further  enacted,  That  when  any  vessel  or  goods 
which  shall  be  taken  as  prize,  as  aforesaid,  shall  appear  to  have  be- 
fore belonged  to  any  person  or  persons  permanently  resident  within 
the  territory,  and  under  the  protection  of  any  foreign  prince,  govern- 
ment or  state,  in  amity  with  the  United  States,  and  to  have  been  taken 
by  an  enemy  of  the  United  States,  or  by  authority  or  pretence  of 
authority  from  any  prince,  government  or  state,  against  which  the 
United  States  have  authorized,  or  shall  authorize,  defence  or  re- 
prisals, then  such  vessel  or  goods  shall  be  adjudged  to  be  restored  to 
the  former  owner  or  owners  thereof,  he  or  they  paying  for  and  in  lieu 
of  salvage,  such  proportion  of  the  true  value  of  the  vessel  or  goods 


ACTS  OF  CONGRESS  91 

so  to  be  restored,  as  by  the  law  or  usage  of  such  prince,  government  or 
state,  within  whose  territory  such  former  owner  or  owners  shall  be  so 
resident,  shall  be  required  on  the  restoration  of  any  vessel  or  goods 
of  a  citizen  of  the  United  States,  under  like  circumstances  of  recap- 
ture, made  by  the  authority  of  such  foreign  prince,  government  or 
state ;  and  where  no  such  law  or  usage  shall  be  known,  the  same 
salvage  shall  be  allowed  as  is  provided  by  the  first  section  of  this  act : 
Provided,  that  no  such  vessel  or  goods  shall  be  adjudged  to  be  re- 
stored to  such  former  owner  or  owners,  in  any  case  where  the  same 
shall  have  been,  before  the  recapture  thereof,  condemned  as  prize  by 
competent  authority,  nor  in  any  case  where  by  the  law  or  usage  of  the 
prince,  government,  or  state,  within  whose  territory  such  former 
owner  or  owners  shall  be  resident  as  aforesaid,  the  vessel  or  goods  of 
a  citizen  of  the  United  States,  under  like  circumstances  of  recapture, 
would  not  be  restored  to  such  citizen  of  the  United  States :  Provided 
also,  that  nothing  herein  shall  be  construed  to  contravene  or  alter  the 
terms  of  restoration  in  cases  of  recapture,  which  are  or  shall  be  agreed 
on  in  any  treaty  between  the  United  States,  and  any  foreign  prince, 
government  or  state. 

Sec.  4.  And  he  it  further  enacted.  That  all  sums  of  money  which 
may  be  paid  for  salvage,  as  aforesaid,  when  accruing  to  any  public 
armed  vessel,  shall  be  divided  to  and  among  the  commanders,  officers 
and  crew  thereof,  in  such  proportions  as  are  or  may  be  provided  by  law, 
respecting  the  distribution  of  prize  money:  and  when  accruing  to  any 
private  armed  vessel,  shall  be  distributed  to  and  among  the  owners 
and  company  concerned  in  such  recapture,  according  to  their  agree- 
ments, if  any  such  there  be ;  and  in  case  there  be  no  such  agreement, 
then  to  and  among  such  persons,  and  in  such  proportions,  as  the 
court  having  jurisdiction  thereof  shall  appoint. 

Sec.  5.  And  he  it  further  enacted,  That  such  parts  of  any  acts  of 
Congress  of  the  United  States,  as  respect  the  salvage  to  be  allowed  in 
cases  of  recapture,  shall  be,  and  are  hereby  repealed,  except  as  to 
cases  of  recapture  made  before  the  passing  of  this  act. 

Approved,  March  3,  1800. 


92  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

Ati  Act  to  continue  in  force  the  act  intituled  "An  act  to  authorize  the 
defence  of  the  merchant  vessels  of  the  United  States  against  French 
depredations. ""^ 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled,  That  the  act  passed 
on  the  twenty-fifth  day  of  June,  one  thousand  seven  hundred  and 
ninety-eight,  intituled  "An  act  to  authorize  the  defence  of  the  merchant 
vessels  of  the  United  States  against  French  depredations,"  excepting 
such  parts  of  the  said  act  as  relate  to  salvage  in  cases  of  recapture, 
shall  continue  and  be  in  force  for  and  during  the  term  of  one  year, 
and  from  thence  to  the  end  of  the  next  session  of  Congress  there- 
after, and  no  longer. 

Approved,  April  22,  1800. 


An  act  to  provide  for  the  ascertainment  of  claims  of  American  citizens 
for  spoliations  committed  by  the  French  prior  to  the  thirty-first  day 
of  July,  eighteen  hundred  and  one.- 

Be  it  enacted  by  the  Senate  and  House  of  Representatives  of  the 
United  States  of  America  in  Congress  assembled.  That  such  citizens 
of  the  United  States,  or  their  legal  representatives,  as  had  valid  claims 
to  indemnity  upon  the  French  Government  arising  out  of  illegal  cap- 
tures, detentions,  seizures,  condemnations,  and  confiscations  prior  to 
the  ratification  of  the  convention  between  the  United  States  and  the 
French  Republic  concluded  on  the  thirtieth  day  of  September,  eighteen 
hundred,  the  ratifications  of  which  were  exchanged  on  the  thirty-first 
day  of  July  following,  may  apply  by  petition  to  the  Court  of  Claims, 
within  two  years  from  the  passage  of  this  act,  as  hereinafter  provided : 
Provided,  That  the  provisions  of  this  act  shall  not  extend  to  such 
claims  as  were  embraced  in  the  convention  between  the  United  States 
and  the  French  Republic  concluded  on  the  thirtieth  day  of  April, 
eighteen  hundred  and  three ;  nor  to  such  claims  growing  out  of  the 
acts  of  France  as  were  allowed  and  paid,  in  whole  or  in  part,  under 
the  provisions  of  the  treaty  between  the  United  States  and  Spain  con- 


1  Statutes  at  Largre.  vol.  H.  p.  39. 

2  Statutes  at  Large,  vol.  XXIII.  p.  283. 


ACTS  OF  CONGRESS  93 

eluded  on  the  twenty-second  day  of  February,  eighteen  hundred  and 
nineteen ;  nor  to  such  claims  as  were  allowed,  in  whole  or  in  part, 
under  the  provisions  of  the  treaty  between  the  United  States  and 
France  concluded  on  the  fourth  day  of  July,  eighteen  hundred  and 
thirty-one. 

Sec.  2.  That  the  court  is  hereby  authorized  to  make  all  needful 
rules  and  regulations,  not  contravening  the  laws  of  the  land  or  the 
provisions  of  this  act,  for  executing  the  provisions  hereof. 

Sec.  3.  That  the  court  shall  examine  and  determine  the  validity  and 
amount  of  all  the  claims  included  within  the  description  above  men- 
tioned, together  with  their  present  ownership,  and,  if  by  assignee,  the 
date  of  the  assignment,  with  the  consideration  paid  therefor :  Provided, 
That  in  the  course  of  their  proceedings  they  shall  receive  all  suitable 
testimony  on  oath  or  affirmation,  and  all  other  proper  evidence,  his- 
torical and  documentary,  concerning  the  same;  and  they  shall  decide 
upon  the  validity  of  said  claims  according  to  the  rules  of  law,  munici- 
pal and  international,  and  the  treaties  of  the  United  States  applicable 
to  the  same,  and  shall  report  all  such  conclusions  of  fact  and  law  as 
in  their  judgment  may  affect  the  liability  of  the  United  States  therefor. 

Sec.  4.  That  the  court  shall  cause  notice  of  all  petitions  presented 
under  this  act  to  be  served  on  the  Attorney-General  of  the  United 
States,  who  shall  be  authorized,  by  himself  or  his  assistant,  to  examine 
witnesses,  to  cause  testimony  to  be  taken,  to  have  access  to  all  testi- 
mony taken  under  this  act,  and  to  be  heard  by  the  court.  He  shall 
resist  all  claims  presented  under  this  act  by  all  proper  legal  defenses. 

Sec.  5.  That  it  shall  be  the  duty  of  the  Secretary  of  State  to  pro- 
cure, as  soon  as  possible  after  the  passage  of  this  act,  through  the 
American  minister  at  Paris  or  otherwise,  all  such  evidence  and  docu- 
ments relating  to  the  claims  above  mentioned  as  can  be  obtained  from 
abroad ;  which,  together  with  the  like  evidence  and  documents  on  file 
in  the  Department  of  State,  or  which  may  be  filed  in  the  Department, 
may  be  used  before  the  court  by  the  claimants  interested  therein,  or 
by  the  United  States,  but  the  same  shall  not  be  removed  from  the  files 
of  the  court;  and  after  the  hearings  are  closed  the  record  of  the  pro- 
ceedings of  the  court  and  the  documents  produced  before  them  shall 
be  deposited  in  the  Department  of  State. 

Sec.  6.  That  on  the  first  Monday  of  December  in  each  year  the 
court  shall  report  to  Congress,  for  final  action,  the  facts  found  by  it, 
and  its  conclusions  in  all  cases  which  it  has  disposed  of  and  not  pre- 


94  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

viously  reported.  Such  finding  and  report  of  the  court  shall  be  taken 
to  be  merely  advisory  as  to  the  law  and  facts  found,  and  shall  not  con- 
clude either  the  claimant  or  Congress ;  and  all  claims  not  finally  pre- 
sented to  said  court  within  the  period  of  two  years  limited  by  this  act 
shall  be  forever  barred;  and  nothing  in  this  act  shall  be  construed  as 
committing  the  United  States  to  the  payment  of  any  such  claims. 
Approved,  January  20th,  1885. 


Proclamations 

Proclamation  of  June  26,  1799^ 

BY  THE  PRESIDENT  OF  THE  UNITED  STATES  OF 

AMERICA 

A  Proclamation 

Whereas  by  an  act  of  the  Congress  of  the  United  States  passed  the 
9th  day  of  February  last,  entitled  "An  act  further  to  suspend  the  com- 
mercial intercourse  between  the  United  States  and  France  and  the 
dependencies  thereof,"  it  is  provided  that  at  any  time  after  the  passing 
of  this  act  it  shall  be  lawful  for  the  President  of  the  United  States,  if 
he  shall  deem  it  expedient  and  consistent  with  the  interests  of  the 
United  States,  by  his  order  to  remit  and  discontinue  for  the  time  being 
the  restraints  and  prohibitions  by  the  said  act  imposed,  either  with  re- 
spect to  the  French  Republic  or  to  any  island,  port,  or  place  belonging 
to  the  said  Republic  with  which  a  commercial  intercourse  may  safely 
be  renewed,  and  also  to  revoke  such  order  whenever,  in  his  opinion,  the 
interest  of  the  United  States  shall  require;  and  he  is  authorized  to 
make  proclamation  thereof  accordingly ;  and 

Whereas  the  arrangements  which  have  been  made  at  St.  Domingo 
for  the  safety  of  the  commerce  of  the  United  States  and  for  the  ad- 
mission of  American  vessels  into  certain  ports  of  that  island  do,  in  my 
opinion,  render  it  expedient  and  for  the  interest  of  the  United  States 
to  renew  a  commercial  intercourse  with  such  ports : 

Therefore  I,  John  Adams,  President  of  the  United  States,  by  virtue 
of  the  powers  vested  in  me  by  the  above-recited  act,  do  hereby  remit 
and  discontinue  the  restraints  and  prohibitions  therein  contained  within 
the  limits  and  under  the  regulations  here  following,  to  wit: 

1.  It  shall  be  lawful  for  vessels  which  have  departed  or  may  depart 
from  the  United  States  to  enter  the  ports  of  Cape  Franqois  and  Port 
Republicain,  formerly  called  Port-au-Prince,  in  the  said  island  of  St. 
Domingo,  on  and  after  the  1st  day  of  August  next. 

2.  No  vessel  shall  be  cleared  for  any  other  port  in  St.  Domingo  than 
Cape  Frangois  and  Port  Republicain. 


1  Richardson,  Messages,  vol.  I,  p.  288. 


96  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

3.  It  shall  be  lawful  for  vessels  which  shall  enter  the  said  ports  of 
Cape  Francois  and  Port  Republicain  after  the  31st  day  of  July  next  to 
depart  from  thence  to  any  other  port  in  said  island  between  Monte 
Christi  on  the  north  and  Petit  Goave  on  the  west ;  provided  it  be  done 
with  the  consent  of  the  Government  of  St.  Domingo  and  pursuant  to 
certificates  or  passports  expressing  such  consent,  signed  by  the  consul- 
general  of  the  United  States  or  consul  residing  at  the  port  of  departure. 

4.  All  vessels  sailing  in  contravention  of  these  regulations  will  be 
out  of  the  protection  of  the  United  States  and  be,  moreover,  liable  to 
capture,  seizure,  and  confiscation. 

Given  under  my  hand  and  the  seal  of  the  United  States,  at  Philadel- 
phia, the  26th  day  of  June,  A.  D.  1799,  and  of  the  Independence  of 
the  said  States  the  twenty-third. 

(Seal.)  John  Adams. 

By  the  President: 

Timothy  Pickering, 
Secretary  of  State. 


Proclamation  of  May  p,  i8oo^ 

PROCLAMATION 

May  9,  1800. 
Whereas  by  an  act  of  Congress  of  the  United  States  passed  the  27th 
day  of  February  last,  entitled  "An  act  further  to  suspend  the  commer- 
cial intercourse  betwen  the  United  States  and  France  and  the  dependen- 
cies thereof,"  it  is  enacted  that  at  any  time  after  the  passing  of  the  said 
act  it  shall  be  lawful  for  the  President  of  the  United  States,  by  his 
order,  to  remit  and  discontinue  for  the  time  being,  whenever  he  shall 
deem  it  expedient  and  for  the  interest  of  the  United  States,  all  or  any 
of  the  restraints  and  prohibitions  imposed  by  the  said  act  in  respect  to 
the  territories  of  the  French  Republic,  or  to  any  island,  port,  or  place 
belonging  to  the  said  Republic  with  which,  in  his  opinion,  a  commercial 
intercourse  may  be  safely  renewed,  and  to  make  proclamation  thereof 
accordingly ;  and  it  is  also  thereby  further  enacted  that  the  whole  of  the 
island  of  Hispaniola  shall,  for  the  purposes  of  the  said  act,  be  con- 
sidered as  a  dependence  of  the  French  Republic ;  and 


^Richardson,  Messages,  vol.  I,  p.  302. 


PROCLAMATIONS  97 

Whereas  the  circumstances  of  certain  ports  and  places  of  the  said 
island  not  comprised  in  the  proclamation  of  the  26th  day  of  June,  1799, 
are  such  that  I  deem  it  expedient  and  for  the  interest  of  the  United 
States  to  remit  and  discontinue  the  restraints  and  prohibitions  imposed 
by  the  said  act  in  respect  to  those  ports  and  places  in  order  that  a 
commercial  intercourse  with  the  same  may  be  renewed : 

Therefore  I,  John  Adams,  President  of  the  United  States,  by  virtue 
of  the  powers  vested  in  me  as  aforesaid,  do  hereby  remit  and  discon- 
tinue the  restraints  and  prohibitions  imposed  by  the  act  aforesaid  in 
respect  to  all  the  ports  and  places  in  the  said  island  of  Hispaniola  from 
Monte  Christi  on  the  north,  round  by  the  eastern  end  thereof  as  far  as 
the  port  of  Jacmel  on  the  south,  inclusively.  And  it  shall  henceforth 
be  lawful  for  vessels  of  the  United  States  to  enter  and  trade  at  any 
of  the  said  ports  and  places,  provided  it  be  done  with  the  consent  of  the 
Government  of  St.  Domingo.  And  for  this  purpose  it  is  hereby  re- 
quired that  such  vessels  first  enter  the  port  of  Cape  Frangois  or  Port 
Republicain,  in  the  said  island,  and  there  obtain  the  passports  of  the 
said  Government,  which  shall  also  be  signed  by  the  consul-general  or 
consul  of  the  United  States  residing  at  Cape  Frangois  or  Port  Repub- 
licain, permitting  such  vessel  to  go  thence  to  the  other  ports  and 
places  of  the  said  island  hereinbefore  mentioned  and  described.  Of  all 
which  the  collectors  of  the  customs  and  all  other  officers  and  citizens  of 
the  United  States  are  to  take  due  notice  and  govern  themselves. 

In  testimony,  etc. 

John  Adams. 


Proclamation  of  September  6,  i8o6^ 

BY  JOHN  ADAMS,  PRESIDENT  OF  THE  UNITED  STATES 

OF  AMERICA 

A  Proclamation 

Whereas  by  an  act  of  the  Congress  of  the  United  States  passed  on 
the  27th  day  of  February  last,  entitled  "An  act  further  to  suspend  the 
commercial  intercourse  between  the  United  States  and  France  and  the 
dependencies  thereof,"  it  is  enacted  "that  at  any  time  after  the  pass- 


^  Richardson,  Messages,  vol.  I,  p.  304. 


98  THE  CONTROVERSY  WITH  FRANCE,  1797-1800 

ing  of  the  said  act  it  shall  be  lawful  for  the  President  of  the  United 
States,  by  his  order,  to  remit  and  discontinue  for  the  time  being, 
whenever  he  shall  deem  it  expedient  and  for  the  interest  of  the  United 
States,  all  or  any  of  the  restraints  and  prohibitions  imposed  by  the 
said  act  in  respect  to  the  territories  of  the  French  Republic,  or  to  any 
island,  port,  or  place  belonging  to  said  Republic  with  which,  in  his 
opinion,  a  commercial  intercourse  may  be  safely  renewed,  and  to 
make  proclamation  thereof  accordingly ;"  and  it  is  also  thereby  further 
enacted  that  the  whole  of  the  island  of  Hispaniola  shall,  for  the  pur- 
poses of  the  said  act,  be  considered  as  a  dependence  of  the  French 
Republic ;  and 

Whereas  the  circumstances  of  the  said  island  are  such  that,  in  my 
opinion,  a  commercial  intercourse  may  safely  be  renewed  with  every 
part  thereof,  under  the  limitations  and  restrictions  hereinafter  men- 
tioned : 

Therefore  I,  John  Adams,  President  of  the  United  States,  by  virtue 
of  the  powers  vested  in  me  as  aforesaid,  do  hereby  remit  and  dis- 
continue the  restraints  and  prohibitions  imposed  by  the  act  aforesaid 
in  respect  to  every  part  of  the  said  island,  so  that  it  shall  be  lawful 
for  vessels  of  the  United  States  to  trade  at  any  of  the  ports  and  places 
thereof,  provided  it  be  done  with  the  consent  of  the  Government  of  St. 
Domingo ;  and  for  this  purpose  it  is  hereby  required  that  such  vessels 
first  clear  for  and  enter  the  port  of  Cape  Frangais  or  Port  Republicain, 
in  the  said  island,  and  there  obtain  the  passports  of  the  said  Govern- 
ment, which  shall  also  be  signed  by  the  consul-general  of  the  United 
States,  or  their  consul  residing  at  Cape  Francais,  or  their  consul  re- 
siding at  Port  Republicain,  permitting  such  vessels  to  go  thence  to  the 
other  ports  and  places  of  the  said  island.  Of  all  which  the  collectors 
of  the  customs  and  all  other  officers  and  citizens  of  the  United  States 
are  to  take  due  notice  and  govern  themselves  accordingly. 

Given  under  my  hand  and  the  seal  of  the  United  States  of  America, 
at  the  city  of  Washington,  this  6th  day  of  September,  A.  D.  1800, 
and  of  the  Independence  of  the  said  States  the  twenty-fifth. 

(Seal.)  John  Adams. 

By  the  President: 
J.  Marshall, 

Secretary  of  State. 


PART  ll-OPINIONS  OF  THE  ATTORNEYS  GENERAL  AND 
JUDGMENTS  OF  THE  SUPREME  COURT  AND  COURT 
OF  CLAIMS  OF  THE    UNITED    STATES 


Opinions  of  the  Attorneys  General  of  the  United  States 

TREASON^ 

It  is  treason  for  a  citizen  or  other  person  not  commissioned,  within  the  United 
States,  to  abet  France  during  a  maritime  war  with  her. 

Buck  Tavern,  Augxist  21,  1798. 

Sir:  Having  taken  into  consideration  the  acts  of  the  French  Re- 
public relative  to  the  United  States,  and  the  laws  of  Congress  passed 
at  the  last  session,  it  is  my  opinion  that  there  exists  not  only  an  actual 
maritime  war  between  France  and  the  United  States,  but  a  maritime 
war  authorized  by  both  nations.  Consequently,  France  is  our  enemy ; 
and  to  aid,  assist,  and  abet  that  nation  in  her  maritime  warfare,  will 
be  treason  in  a  citizen  or  any  other  person  within  the  United  States 
not  commissioned  under  France.  But  in  a  French  subject,  commis- 
sioned by  France,  acting  openly  according  to  his  commission,  such 
assistance  will  be  hostility.  The  former  may  be  tried  and  punished 
according  to  our  laws;  the  latter  must  be  treated  according  to  the 
laws  of  war. 

I  have  thought  it  my  duty  to  make  this  commimication  in  conse- 
quence of  the  information  you  received  from  Rhode  Island,  of  the 
intentions  of  a  Frenchman,  whose  name  I  do  not  now  call  to  mind, 
who  is  said  to  be  somewhere  in  this  country,  on  the  business  of  buying 
ships  and  supplies  of  a  military  kind,  for  the  West  Indies.  He  should 
be  apprehended  and  tried  as  a  traitor,  unless  he  has  a  commission,  and 
acts  according  to  it ;  in  which  case  he  should  be  treated  as  an  enemy, 
and  confined  as  a  prisoner  of  war. 

I  have  the  honor,  etc.,  etc., 

Charles  Lee. 

To  the  Secretary  of  State. 


1  Official   Opinions   of  the   Attorneys   General  of   the   United   States,  vol.   i, 
page  84. 


100  OPINIONS  OF  THE  ATTORNEYS  GENERAL 

PRIZE  SHIP  AND  CREW— HOW  TO  BE  DISPOSED  OF^ 

If  the  prize  be  a  pirate,  the  officers  and  crew  are  to  be  prosecuted  in  the  circuit 
court  of  the  United  States,  without  respect  to  the  nation  to  which  each  indi- 
vidual may  belong. 

If  it  be  regularly  commissioned  as  a  ship-of-war,  the  officers  and  crew  are  to  be 
detained  as  prisoners,  except  such  as  are  citizens  of  the  United  States. 

Citizens  of  the  United  States  who  aid  a  nation  with  whom  we  are  at  war  on  the 
high  seas,  against  the  United  States,  are  guilty  of  treason. 

Offenders  against  the  United  States  may  be  arrested,  imprisoned,  or  bailed, 
agreeably  to  the  usual  mode  of  process  in  a  State,  but  can  be  tried  only 
before  the  court  of  the  United  States  having  cognizance  of  the  offense. 

Proceedings  against  the  ship  and  cargo  are  to  be  had  before  the  district  court 
of  the  United  States,  according  to  the  laws  of  Congress  and  the  usage  and 
practice  of  courts  of  admiralty  in  prize  causes. 

Alexandria,  September  20,  1798. 

Sir:  I  take  the  liberty  of  writing  to  you  on  an  interesting  subject, 
concerning  which  you  will  perhaps  hear  from  the  Secretary  of  State. 

According  to  the  account  given  in  the  Norfolk  paper  of  the  15th,  it 
seems  probable  that  the  ship  Nigre,  prize  to  the  Constitution,  will  be 
found  to  be  a  pirate.  If,  after  due  inquiry  (which  you  are  requested 
to  make,  and  for  that  purpose  to  go  to  Norfolk),  it  shall  appear  to 
be  the  case,  the  officers  and  crew,  and  all  others  on  board  having  any 
agency  in  the  ship,  are  to  be  prosecuted  (witnesses  excepted)  in  the 
circuit  court  of  the  United  States  for  the  district  of  Virginia,  accord- 
ing to  the  laws  of  the  United  States,  without  respect  to  the  nation  to 
which  each  individual  may  belong,  whether  he  be  British,  French, 
American,  or  of  any  other  nation. 

On  the  other  hand,  if  the  ship  is  regularly  commissioned  and  au- 
thorized by  France  as  a  public  or  private  ship  of  war,  all  the  officers 
and  crew  are  to  be  detained  as  prisoners,  at  the  expense  of  the  United 
States — except  such  as  are  citizens  of  the  United  States,  or  of  some 
one  of  them,  who  may  be  tried  for  treason  in  adhering  to,  and  aiding, 
the  enemies  of  the  United  States.  After  mature  consideration  of  the 
decrees  of  France,  and  of  the  laws  of  the  United  States,  and  the  con- 
duct of  each  nation  to  the  other,  it  is  my  opinion  that  the  two  nations 
are  in  a  state  of  maritime  war;  and,  consequently,  that  the  citizens 
of  the  United  States  who  aid  and  adhere  to  France  in  acts  of  hostility 
on  the  high  sea,  against  the  United  States  and  their  fellow-citizens,  are 


1  Official    Opinions   of   the   Attorneys    General   of   the   United    States,   vol.   i, 
page  85.  ^ 


OPINIONS  OF  THE  ATTORNEYS  GENERAL  101 

guilty  of  treason.  Perhaps  this  opinion  may  be  found  erroneous ;  if  so, 
such  citizens,  if  acquitted  of  treason,  may  be  indicted  for  felony,  under 
the  ninth  section  of  the  act  passed  30th  April,  1790,  entitled  "An  act 
for  the  punishment  of  certain  crimes  against  the  United  States." 

I  conceive  the  law  of  Virginia,  which  requires  the  examination  be- 
fore a  county  or  corporation  court,  of  criminals  triable  in  the  State 
courts,  does  not  apply  to  criminals  triable  before  the  courts  of  the 
United  States  in  the  Virginia  district.  Upon  this  point,  reference  may 
be  had  to  the  23d  section  of  the  20th  chapter  of  the  acts  of  Congress 
of  1789.  By  this  section,  an  offender  against  the  United  States  is, 
agreeably  to  the  usual  mode  of  process  against  offenders  in  such  State 
where  he  is  found,  to  be  arrested  and  imprisoned,  or  bailed,  as  the 
case  may  be,  for  trial  before  the  court  of  the  United  States  having 
cognizance  of  the  offense.  The  arrest  is  to  be  agreeably  to  the  usual 
mode  of  process  in  the  State ;  the  imprisonment  or  bailment  is  also 
to  be  agreeably  to  the  usual  mode  of  process  in  the  State;  but  the  trial 
is  to  be  only  before  the  court  of  the  United  States  having  cognizance 
of  the  offense.  The  examination  preparatory  to  the  trial  is  to  be  be- 
fore a  magistrate,  who  is  to  send  to  the  clerk's  office  of  the  court, 
copies  of  the  process  and  the  recognizance  of  the  witnesses,  for  their 
appearance  to  testify.  To  admit  a  different  construction  of  this  sec- 
tion, would  be  to  admit  a  different  mode  of  trial  of  the  same  offense 
against  the  United  States,  in  their  courts,  as  it  might  happen  to  be 
cognizable  in  one  district  or  in  another;  for  the  examination  before 
a  county  or  corporation  court,  according  to  the  law  of  Virginia,  is  a 
species  of  trial  that  gives  a  chance  of  acquittal  unknown  in  other 
States.  Besides,  the  text  of  the  Virginia  law  seems  to  be  confined  to 
offenders  amenable  to  the  courts  of  the  State. 

Against  the  ship  and  cargo,  proceedings  are  to  be  had  before  the 
district  court  of  the  United  States  in  Virginia,  according  to  the  laws 
of  Congress  and  the  usage  and  practice  of  courts  of  admiralty  in  prize 
causes. 

It  will  afford  me  satisfaction  to  receive  from  you  a  statement  of 
facts  relative  to  this  ship,  and  your  ideas  on  the  matters  of  law  which 
have  been  the  subject  of  these  remarks. 
I  am,  etc.,  etc., 

Charles  Lee. 
To  Thomas  Nelson,  Esq., 

District  Attorney,  U.  S.,  Yorktoziii,  Virginia. 


Judgments  of  the  Supreme  Court  of  the  United  States 


TALBOT  V.  The  Ship  AMELIA,  SEEMAN,  Claimant^ 

Salvage 

The  officers  and  crew  of  a  ship  of  war  are  entitled  to  salvage,  for  the  recapture 
of  an  armed  neutral  vessel,  from  a  foreign  belligerent,  by  whom  she  had 
been  manned  with  a  prize  crew. 

Error  from  the  Circuit  Court  of  New  York.  It  appeared  on  the 
record,  that  Captain  Talbot,  of  the  frigate  Constitution,  having  recap- 
tured the  Amelia,  an  armed  Hamburg  vessel,  which  had  been  captured 
by  a  French  national  corvette,  and  ordered  to  St.  Domingo  for  adjudi- 
cation, brought  her  into  the  port  of  New  York.  A  libel  was,  thereupon, 
filed  in  the  district  court,  by  the  recaptor,  setting  forth  the  facts,  and 
praying  that  the  vessel  and  cargo  might  be  condemned  as  prize;  or 
that  such  other  decree  might  be  pronounced  as  the  court  should  deem 
just  and  proper. 

A  claim  was  filed  by  H.  F.  Seeman,  for  Chapeau  Rouge  &  Co.,  of 
Hamburg,  the  owners,  insisting  that  the  property  had  not  been  changed 
by  the  capture,  and  praying  restitution,  with  damages  and  costs.  The 
District  Judge,  Hobart,  decreed  one-half  of  the  gross  amount  of  sales 
of  ship  and  cargo,  without  deduction  (a  sale  having  been  made  by  con- 
sent), to  be  paid  to  the  recaptors,  in  the  proportions  directed  by  the 
act  of  Congress  for  the  government  of  the  navy  ;  and  the  other  half,  de- 
ducting all  costs  and  charges,  to  be  paid  to  the  claimants. 

The  cause  was  brought  by  appeal  before  the  circuit  court,  Wash- 
ington, Justice,  presiding,  who  reversed  the  decree  of  the  district 
court,  so  far  as  it  ordered  payment  of  one-half  of  the  gross  sales  to  the 
recaptors,  "considering  that,  as  the  nation  to  which  the  owners  of  the 
said  ship  and  cargo  belong,  is  in  amity  with  the  French  Republic,  the 
ship  and  cargo  could  not,  consistently  with  the  laws  of  nations,  be  con- 
demned by  the  French,  as  a  lawful  prize  ;  and  that,  therefore,  no  service 
was  rendered  by  the  Constitution,  or  by  the  commander,  officers  or 
crew  thereof,  by  the  recapture  aforesaid ;"  and  affirmed  the  rest  of  the 


M  Dallas,  34;  August  term,  1800.     Same  case,  1  Cranch,  1.     [Infra,  p.  116.] 


TALBOT  V.  THE  SHIP  AMELIA.  103 

decree.  On  the  decree  of  the  circuit  court,  the  present  writ  of  error 
was  instituted;  and  the  following  statement  of  facts  made  a  part  of 
the  record  by  consent: 

The  following  case  is  agreed  upon  by  the  parties,  to  be  annexed 
to  the  writ  of  error  in  this  cause,  viz. :  The  ship  Amelia  sailed 
from  Calcutta,  in  Bengal,  in  the  month  of  April,  1799,  loaded  with 
a  cargo  of  the  produce  and  manufacture  of  that  country,  consist- 
ing of  cotton,  sugars  and  dry  goods  in  bales,  bound  to  Hamburg. 
On  the  6th  of  September,  in  the  same  year,  the  same  was  cap- 
tured, whilst  in  the  pursuit  of  her  said  voyage,  by  the  French 
national  corvette  La  Diligente,  L.  I.  Dubois,  commander,  who 
took  out  her  captain  and  part  of  her  crew,  together  with  most  of 
her  papers,  and  placed  a  prize-master  and  French  sailors  on  board 
of  her,  ordering  the  prize-master  to  conduct  her  to  St.  Domingo, 
to  be  judged  according  to  the  laws  of  war.  On  the  15th  of  the 
same  month  of  September,  the  United  States  ship  of  war.  the 
Constitution,  commanded  by  Silas  Talbot,  Esquire,  the  libellant, 
fell  in  with,  and  recaptured  the  Amelia,  she  being  then  in  full  pos- 
session of  the  French,  and  pursuing  her  course  for  St.  Domingo, 
according  to  the  orders  received  from  the  captain  of  the  French 
corvette.  At  the  time  of  the  recapture,  the  Amelia  had  eight  iron 
cannon  mounted,  and  eight  wooden  guns,  with  which  she  had  left 
Calcutta,  as  before  stated.  From  such  of  the  ship's  papers  as 
were  found  on  board,  and  the  testimony  in  the  cause,  the  ship 
Amelia,  and  her  cargo,  appear  to  have  been  the  property  of 
Chapeau  Rouge,  a  citizen  of  Hamburg,  residing  and  carrying  on 
commerce  in  that  place.  It  is  conceded,  that  the  Republic  of 
France  and  the  city  of  Hamburg  are  not  in  a  state  of  hostility  to 
each  other,  and  that  Hamburg  is  to  be  considered  as  neutral  be- 
tween the  present  belligerent  powers.  The  Amelia  and  her  cargo, 
having  been  sent  by  Captain  Talbot  to  New  York,  were  there 
libelled  in  the  district  court,  and  such  proceedings  were  there- 
upon had  in  that  court,  and  the  circuit  court  for  that  district,  as 
may  appear  by  the  writ  of  error  and  return. 

Alexander  Hamilton,  of  counsel  for  plaintiff  in  error. 

B.  Livingston,  of  counsel  for  defendant  in  error. 

The  cause  was  argued,  on  the  11th,  12th  and  13th  of  August,  1800, 
by  Ingersoll  and  Lewis,  for  the  plaintiff  in  error ;  and  by  M.  Levy  and 
Dallas,  for  the  defendant  in  error.  The  general  points  of  the  discussion 
were  these : 

1st.  Whether  the  Amelia  could  be  considered,  at  the  time  of  the  re- 
capture, as  a  French  armed  vessel,  within  the  meaning  of  the  act  of 


104  JUDGMENTS  OF  THE  SUPREME  COURT 

Congress,  which  authorizes  the  seizure  of  French  armed  vessels? 
(1  U.  S.  Stat.  572.) 

2d.  Whether  Captain  Talbot  was  authorized  to  make  a  recapture, 
the  Amelia  belonging  to  a  power,  equally  in  amity  with  the  United 
States,  and  with  France? 

3.  Whether  on  positive  statute,  or  general  principles,  a  salvage  was 
due  to  the  recaptors,  for  rescuing  the  Amelia  from  the  French? 

On  the  18th  of  August,  Paterson,  Justice,  stated,  that  it  was  the 
wish  of  the  court  to  postpone  the  cause,  for  further  argument,  before  a 
fuller  bench.  It  was  accordingly,  argued  again,  at  Washington,  in 
August  term,  1801,  by  Ingersoll  and  Bayard  (of  Delaware),  for  the 
plaintiff  in  error;  and  by  M.  Levy,  J.  T.  Mason  (of  Maryland)  and 
Dallas,  for  the  defendant  in  error.  And  Marshall,  Chief  Justice, 
delivered  the  judgment  of  the  court,  "that  the  decree  of  the  circuit 
court  was  correct,  in  reversing  the  decree  of  the  district  court,  but  not 
correct  in  decreeing  the  restoration  of  the  Amelia,  without  paying  sal- 
vage. This  court,  therefore,  is  of  opinion,  that  the  decree,  so  far  as  the 
restoration  of  the  Am,elia  without  salvage  is  ordered,  ought  to  be  re- 
versed :  and  that  the  Amelia  and  her  cargo  ought  to  be  restored  to  the 
claimant,  on  paying  for  salvage  one-sixth  part  of  the  net  value,  after 
deducting  therefrom  the  charges  which  have  been  incurred."^ 


BAS  V.  TINGY,  {THE  ELI Z Ay 
State  of  war. — Salvage 

Every  contention,  by  force,  between  two  nations,  in  external  matters,  under 
authority  of  their  respective  governments,  is  a  public  war. 

If  a  general  war  be  declared,  its  extent  and  operations  are  only  restricted  and 
regulated  by  the  jus  belli,  forming  part  of  the  law  of  nations ;  but  if  a 
partial  war  be  waged,  its  extent  and  operation  depend  on  our  municipal 
laws.    Chase,  J- 

A  belligerent  power  has  a  right,  by  the  laws  of  nations,  to  search  a  neutral 
vessel ;  and  upon  suspicion  of  a  violation  of  her  neutral  obligations,  to  seize 
and  carry  her  into  port  for  further  examination.     Ibid. 


1  A  full  report  of  the  arguments,  on  the  first  hearing  of  this  cause,  was  pre- 
pared ;  but  they  are  found  so  ably  incorporated  with  the  arguments  on  the 
second  hearing,  in  Mr.  Cranch's  Reports,  that  it  has  been  thought  unnecessary 
to  publish  it  in  this  volume.     1  Cranch,  1.     [Infra,  p.  116.] 

2  4  Dallas,  Z7 ;  August  term,  1800. 


BAS  V.  TINGY   (THE  ELIZA)  105 

An  American  vessel,  captured  by  a  French  privateer,  on  the  31st  March,  1799, 
and  recaptured  by  a  pubhc  armed  American  ship,  on  the  21st  of  April,  1799, 
was  condemned  to  pay  salvage,  under  the  act  of  Congress  of  the  2d  March, 
1799. 

In  error  from  the  Circuit  Court  for  the  district  of  Pennsylvania.  On 
the  return  of  the  record,  it  appeared  by  a  case  stated,  that  the  defen- 
dant in  error  had  filed  a  libel  in  the  district  court,  as  commander  of 
the  public  armed  ship,  the  Ganges,  for  himself  and  others,  against  the 
ship  Eliza,  John  Bas,  master,  her  cargo,  etc.,  in  which  he  set  forth 
that  the  said  ship  and  cargo  belonged  to  citizens  of  the  United  States ; 
that  they  were  taken  on  the  high  seas,  by  a  French  privateer,  on  the 
31st  of  March,  1799;  and  that  they  were  retaken  by  the  libellant,  on 
the  21st  of  April  following,  after  having  been  above  ninety-six  hours 
in  possession  of  the  captors.  The  libel  prayed  for  salvage,  conformable 
to  the  acts  of  Congress;  and  the  facts  being  admitted  by  the  answer 
of  the  respondents,  the  district  court  decreed  to  the  libellants  one-half 
of  the  whole  value  of  ship  and  cargo.  This  decree  was  affirmed  in 
the  circuit  court,  without  argument,  and  by  consent  of  the  parties,  in 
order  to  expedite  a  final  decision  on  the  present  writ  of  error. 

The  controversy  involved  a  consideration  of  the  following  sections 
in  two  acts  of  Congress:  By  an  act  of  the  28th  of  June,  1798  (1  U.  S. 
Stat  574,  §  2),  it  is  declared,  "That  whenever  any  vessel  the  property 
of,  or  employed  by,  any  citizen  of  the  United  States,  or  person  resident 
therein,  or  any  goods  or  effects  belonging  to  any  such  citizen  or  resi- 
dent, shall  be  recaptured  by  any  public  armed  vessel  of  the  United 
States,  the  same  shall  be  restored  to  the  former  owner  or  owners, 
upon  due  proof,  he  or  they  paying  and  allowing,  as  and  for  salvage  to 
the  recaptors,  one-eighth  part  of  the  value  of  such  vessel,  goods  and 
effects,  free  from  all  deduction  and  expenses." 

By  an  act  of  the  2d  of  March,  1799  (1  U.  S.  Stat.  716),  it  is  de- 
clared, "That  for  the  ships  or  goods  belonging  to  the  citizens  of  the 
United  States,  or  to  the  citizens  or  subjects  of  any  nation  in  amity 
with  the  United  States,  if  retaken  from  the  enemy  within  twenty-four 
hours,  the  owners  are  to  allow  one-eighth  part  of  the  whole  value  for 
salvage,  etc. ;  and  if  above  ninety-six  hours,  one-half,  all  of  which  is 
to  be  paid,  without  any  deduction  whatsoever,  etc.  And  by  the  9th  sec- 
tion of  the  same  act,  it  is  declared,  "That  all  the  money  accruing,  or 
which  has  already  accrued  from  the  sale  of  prizes,  shall  be  and  remain 


106  JUDGMENTS  OF  THE  SUPREME  COURT 

forever  a  fund  for  the  payment  of  the  half-pay  to  the  officers  and 
seamen,  who  may  be  entitled  to  receive  the  same." 

The  case  was  argued  by  Leiuis  and  E.  Tilghman,  for  the  plaintiff  in 
error,  and  by  Rmde  and  W.  Tilghumn,  for  the  defendant ;  and  the  ar- 
gument turned  principally  upon  two  inquiries:  1st.  Whether  the  act 
of  March,  1799,  applied  only  to  the  event  of  a  future  general  war? 
2d.  Whether  France  was  an  enemy  of  the  United  States,  within  the 
meaning  of  the  law? 

For  the  plaintiff  in  error,  it  was  urged,  that  the  acts,  passed  in 
immediate  relation  to  France,  were  of  a  restricted  temporary  nature; 
but  that  the  act  of  March,  1799,  established  a  permanent  system  for 
the  government  of  the  navy;  and  the  designation  of  "the  enemy"  in 
that  act,  applies  only  to  future  hostilities,  in  case  of  a  declared  war. 
That  on  the  just  principles  of  government,  every  citizen  has  a  right 
to  the  public  protection;  and  therefore,  no  salvage  ought,  in  strictness, 
to  be  allowed  for  the  recapture  of  the  property  of  a  citizen  by  a  public 
ship  of  war.  Vatt.  lib.  2,  c.  6,  §  71.  And  Congress  has  manifested, 
in  some  degree,  their  sense  on  the  subject,  by  making  the  salvage  in 
that  case  less  than  in  the  case  of  recapture  by  a  private  armed  vessel. 
That  the  word  "enemy"  must  be  construed  according  to  its  legal  im- 
port (1  Str,  278)  ;  and  that,  according  to  legal  interpretation,  the  dif- 
ferences between  the  United  States  and  France  do  not  constitute  war, 
nor  render  the  citizens  of  France  enemies  of  the  United  States.  Vatt. 
lib.  3,  §§  69,  70;  1  Black.  Com.  257;  2  ibid.  259;  2  Burl.  258,  §  31; 
261,  §  39;  262.  That  a  subsequent  law  does  not  abrogate  a  prior  law, 
unless  it  contains  contradictory  matter;  and  where  there  are  no  nega- 
tive or  repealing  words,  both  must  be  so  construed  as  to  stand  to- 
gether. 11  Co.  61,  62>;  Show.  439;  10  Mod.  118;  6  Co.  19  h.  That 
the  act  of  March,  1799,  contains  no  repealing  or  negative  words;  and 
may  be  applied,  consistently,  to  the  case  of  a  future  public  war,  leaving 
the  qualified  state  of  hostility  with  France,  for  the  operation  of  the 
preceding  law. 

For  the  defendant  in  error,  it  was  contended,  that  the  relative  situa- 
tion of  the  United  States  and  France,  is  that  of  "a  qualified  maritime 
war ;"  on  the  part  of  the  French,  aggressive ;  on  our  part,  defensive ; 
proceeding  from  a  legitimate  expression  of  the  public  will,  through  its 
constitutional  organ,  the  congress,  manifested  by  public  declarations 


BAS  V.  TINGY  (THE  ELIZA)  107 

and  open  acts.  That  from  such  a  state,  the  character  of  enemy  neces- 
sarily arises;  and  that  the  designation  being  so  understood  by  con- 
gress, was  intended  to  be  applied,  and  was  actually  applied,  to  France. 
That  the  act  of  March,  1799,  speaks  of  prizes,  which  could  only  be  such 
as  had  been  captured  from  France;  and  that  taking  the  word  prize, 
according  to  its  legal  signification,  it  means  a  capture,  or  acquisition 
by  right  of  war,  in  a  state  of  war.  3  Bl.  Com.  69,  108 ;  2  Wood.  441 ; 
Doug.  585,  591 ;  Rob.  Adm.  283.  That  if  a  prize  means  a  capture  in 
war,  it  follows,  of  course,  that  it  means  a  capture  from  an  enemy;  for 
war  can  only  be  waged  against  enemies.  That  war  may  exist,  without 
a  declaration ;  a  defensive  war  requires  no  declaration ;  and  an  imper- 
fect or  qualified  public  war,  is  still  distinct  from  the  case  of  letters 
of  marque  and  reprisal,  for  the  redress  of  a  private  wrong,  by  the  em- 
ployment of  a  private  force.  1  Ruth.,  lib.  1,  c.  19,  §  1,  p.  470-1 :  2 
ibid.  497-8,  503,  507,  511;  Burl.  196,  189;  Vatt  475;  2  Burl.  204, 
§  7;  Lee  on  Capt.  13-39;  PuflF.  843 ;  Grot.,  lib.  3,  c.  3,  §  6;  Molloy,  46. 
That  congress,  by  repealing  the  regulations  respecting  salvage,  con- 
tained in  the  act  of  March,  1798,  has  virtually  declared,  that  those 
regulations  were  in  force,  in  relation  to  France;  and  that  the  provi- 
sions in  the  act  of  March,  1799,  being  inconsistent  with  the  provision 
in  the  act  of  June,  1798,  the  elder  law  is  so  far  repealed.^ 

The  judges  delivered  their  opinions  seriatiin  in  the  following  manner: 

Moore,  Justice. — This  case  depends  on  the  construction  of  the  act 
for  the  regulation  of  the  navy.  It  is  objected,  indeed,  that  the  act  ap- 
plies only  to  future  wars ;  but  its  provisions  are  obviously  applicable  to 
the  present  situation  of  things,  and  there  is  nothing  to  prevent  an  im- 
mediate commencement  of  its  operation. 

It  is,  however,  more  particularly  urged,  that  the  word  "enemy"  can 
not  be  applied  to  the  French ;  because  the  section  in  which  it  is  used, 
is  confined  to  such  a  state  of  war,  as  would  authorize  a  recapture  of 
property  belonging  to  a  nation  in  amity  with  the  United  States,  and 
such  a  state  of  war,  it  is  said,  does  not  exist  between  America  and 
France.  A  number  of  books  have  been  cited  to  furnish  a  glossary  on 
the  word  enemy ;  yet,  our  situation  is  so  extraordinary,  that  I  doubt 


1  All  the  acts  of  Congress,  passed  in  relation  to  France,  were  cited  and  dis- 
cussed by  both  sides,  in  the  course  of  the  argument;  but  it  is  thought  unneces- 
sary to  refer  to  them  more  particularly  in  this  report. 


108  JUDGMENTS  OF  THE  SUPREME  COURT 

whether  a  parallel  case  can  be  traced  in  the  history  of  nations.  But  if 
words  are  the  representatives  of  ideas,  let  me  ask,  by  what  other 
word,  the  idea  of  the  relative  situation  of  America  and  France  could 
be  communicated,  than  by  that  of  hostility  or  war?  And  how  can  the 
characters  of  the  parties  engaged  in  hostility  or  war,  be  otherwise 
described,  than  by  the  denomination  of  enemies?  It  is  for  the  honor 
and  dignity  of  both  nations,  therefore,  that  they  should  be  called  ene- 
mies ;  for  it  is  by  that  description  alone,  that  either  could  justify  or 
excuse  the  scene  of  bloodshed,  depredation  and  confiscation,  which 
has  unhappily  occurred ;  and  surely,  Congress  could  only  employ  the 
language  of  the  act  of  June  13,  1798,  towards  a  nation  whom  she  con- 
sidered as  an  enemy. 

Nor  does  it  follow,  that  the  act  of  March,  1799,  is  to  have  no  opera- 
tion, because  all  the  cases  in  which  it  might  operate,  are  not  in  exist- 
ence at  the  time  of  passing  it.  During  the  present  hostilities,  it  affects 
the  case  of  recaptured  property  belonging  to  our  own  citizens,  and  in 
the  event  of  a  future  war,  it  might  also  be  applied  to  the  case  of  re- 
captured property  belonging  to  a  nation  in  amity  with  the  United 
States.  But  it  is  further  to  be  remarked,  that  all  the  expressions  of  the 
act  may  be  satisfied,  even  at  this  very  time:  for  by  former  laws,  the 
recapture  of  property,  belonging  to  persons  resident  within  the  United 
States,  is  authorized ;  those  residents  may  be  aliens ;  and  if  they  are 
subjects  of  a  nation  in  amity  with  the  United  States,  they  answer 
completely  the  description  of  the  law. 

The  only  remaining  objection,  offered  on  behalf  of  the  plaintiff 
in  error,  supposes,  that,  because  there  are  no  repealing  or  negative 
words,  the  last  law  must  be  confined  to  future  cases,  in  order  to  have  a 
subject  for  the  first  law  to  regulate.  But  if  two  laws  are  inconsistent 
(as,  in  my  judgment,  the  laws  in  question  are),  the  latter  is  a  virtual 
repeal  of  the  former,  without  any  express  declaration  on  the  subject. 

On  these  grounds,  I  am  clearly  of  opinion,  that  the  decree  of  the 
circuit  court  ought  to  be  affirmed. 

Washington,  Justice. — It  is  admitted,  on  all  hands,  that  the  defen- 
dant in  error  is  entitled  to  some  compensation:  but  the  plaintiff  in 
error  contends,  that  the  compensation  should  be  regulated  by  the  act 
of  the  28th  June,  1798  (1  U.  S.  Stat.  574,  §  2),  which  allows  only  one- 
eighth  for  salvage ;  while  the  defendant  in  error  refers  his  claim  to  the 
act  of  the  2d  March  (ibid.  716,  §  7),  which  makes  an  allowance  of 


BAS  V.  TINGY  (THE  ELIZA)  109 

one-half,  upon  a  recapture  from  the  enemy,  after  an  adverse  posses- 
sion of  ninety-six  hours.  If  the  defendant's  claim  is  well  founded,  it 
follows,  that  the  latter  law  must  virtually  have  worked  a  repeal  of  the 
former ;  but  this  has  been  denied,  for  a  variety  of  reasons : 

1st.  Because  the  former  law  relates  to  recaptures  from  the  French, 
and  the  latter  law  relates  to  recaptures  from  the  enemy ;  and  it  is  said, 
that  "the  enemy"  is  not  descriptive  of  France  or  of  her  armed  vessels, 
according  to  the  correct  and  technical  understanding  of  the  word. 

The  decision  of  this  question  must  depend  upon  another;  which  is, 
whether,  at  the  time  of  passing  the  act  of  Congress  of  the  2d  of 
March,  1799,  there  subsisted  a  state  of  war  between  the  two  nations? 
It  may,  I  believe,  be  safely  laid  down,  that  every  contention  by  force, 
between  two  nations,  in  external  matters,  under  the  authority  of  their 
respective  governments,  is  not  only  war,  but  public  war.  If  it  be  de- 
clared in  form,  it  is  called  solemn,  and  is  of  the  perfect  kind ;  because 
one  whole  nation  is  at  war  -with  another  whole  nation;  and  all  the 
members  of  the  nation  declaring  war  are  authorized  to  commit  hostili- 
ties against  all  the  members  of  the  other,  in  every  place  and  under 
every  circumstance.  In  such  a  war,  all  the  members  act  under  a 
general  authority,  and  all  the  rights  and  consequences  of  war  attach  to 
their  condition. 

But  hostilities  may  subsist  between  two  nations,  more  confined  in  its 
nature  and  extent ;  being  limited  as  to  places,  persons  and  things ;  and 
this  is  more  properly  termed  imperfect  war;  because  not  solemn,  and 
because  those  who  are  authorized  to  commit  hostilities  act  under  special 
authority,  and  can  go  no  further  than  to  the  extent  of  their  commis- 
sion. Still,  however,  it  is  public  war,  because  it  is  an  external  conten- 
tion by  force,  between  some  of  the  members  of  the  two  nations, 
authorized  by  the  legitimate  powers.  It  is  a  war  between  the  two 
nations,  though  all  the  members  are  not  authorized  to  commit  hostili- 
ties, such  as  in  a  solemn  war,  where  the  government  restrain  the 
general  power. 

Now,  if  this  be  the  true  definition  of  war,  let  us  see,  what  was  the 
situation  of  the  United  States  in  relation  to  France.  In  March,  1799, 
Congress  had  raised  an  army;  stopped  all  intercourse  with  France; 
dissolved  our  treaty;  built  and  equipped  ships  of  war;  and  commis- 
sioned private  armed  ships ;  enjoining  the  former,  and  authorizing  the 
latter,  to  defend  themselves  against  the  armed  ships  of  France,  to 
attack  them  on  the  high  seas,  to  subdue  and  take  them  as  prize,  and 


110  JUDGMENTS  OF  THE  SUPREME  COURT 

to  recapture  armed  vessels  found  in  their  possession.  Here,  then,  let 
me  ask,  what  were  the  technical  characters  of  an  American  and 
French  armed  vessel,  combating  on  the  high  seas,  with  a  view,  the  one 
to  subdue  the  other,  and  to  make  prize  of  his  property?  They  cer- 
tainly were  not  friends,  because  there  was  a  contention  by  force ;  nor 
were  they  private  enemies,  because  the  contention  was  external,  and 
authorized  by  the  legitimate  authority  of  the  two  governments.  If 
they  were  not  our  enemies,  I  know  not  what  constitutes  an  enemy. 

2d.  But  secondly,  it  is  said,  that  a  war  of  the  imperfect  kind,  is 
more  properly  called  acts  of  hostility  or  reprisal,  and  that  Congress  did 
not  mean  to  consider  the  hostility  subsisting  between  France  and  the 
United  States,  as  constituting  a  state  of  war.  In  support  of  this  posi- 
tion, it  has  been  observed,  that  in  no  law,  prior  to  March,  1799,  is 
France  styled  our  enemy,  nor  are  we  said  to  be  at  war.  This  is  true; 
but  neither  of  these  things  were  necessary  to  be  done:  because,  as  to 
France,  she  was  sufficiently  described  by  the  title  of  the  French  Re- 
public; and  as  to  America,  the  degree  of  hostihty  meant  to  be  car- 
ried on,  was  sufficiently  described,  without  declaring  war,  or  de- 
claring that  we  were  at  war.  Such  a  declaration  by  Congress,  might 
have  constituted  a  perfect  state  of  war,  which  was  not  intended  by 
the  government. 

3d.  It  has  likewise  been  said,  that  the  7th  section  of  the  act  of  March, 
1799,  embraces  cases  which,  according  to  preexisting  laws,  could  not 
then  take  place,  because  no  authority  had  been  given  to  recapture 
friendly  vessels  from  the  French ;  and  this  argument  was  strongly  and 
forcibly  pressed.  But  because  every  case  provided  for  by  this  law  was 
not  then  existing,  it  does  not  follow,  that  the  law  should  not  operate 
upon  such  as  did  exist,  and  upon  the  rest,  whenever  they  should  arise. 
It  is  a  permanent  law,  embracing  a  variety  of  subjects,  not  made  in 
relation  to  the  present  war  with  France  only,  but  in  relation  to  any 
future  war  with  her,  or  with  any  other  nation.  It  might  then  very 
properly  allow  salvage  for  recapturing  of  American  vessels  from 
France,  which  had  previously  been  authorized  by  law,  though  it  could 
not  immediately  apply  to  the  vessels  of  friends:  and  whenever  such 
a  war  should  exist  between  the  United  States  and  France,  or  any 
other  nation,  as,  according  to  the  law  of  nations,  or  special  authority, 
would  justify  the  recapture  of  friendly  vessels,  it  might,  on  that  event, 
with  similar  propriety,  apply  to  them,  which  furnishes,  I  think,  the  true 
construction  of  the  act.    The  opinion  which  I  delivered  at  New  York, 


BAS  V.  TINGY  (THE  ELIZA)  HI 

in  Talbot  v.  Seeman,  was,  that  although  an  American  vessel  could  not 
justify  the  retaking  of  a  neutral  vessel  from  the  French,  because 
neither  the  sort  of  war  that  subsisted,  nor  the  special  commission  un- 
der which  the  American  acted,  authorized  the  proceeding;  yet,  that 
the  7th  section  of  the  act  of  1799,  applied  to  recaptures  from  France, 
as  an  enemy,  in  all  cases  authorized  by  Congress.  And  on  both  points, 
my  opinion  remains  unshaken ;  or  rather  has  been  confirmed  by  the 
very  able  discussion  which  the  subject  has  lately  undergone  in  this 
court,  on  the  appeal  from  my  decree. 

Another  reason  has  been  assigned  by  the  defendant's  counsel,  why 
the  former  law  is  not  to  be  regarded  as  repealed  by  the  latter,  to  wit, 
that  a  subsequent  affirmative  general  law  can  not  repeal  a  former 
affirmative  special  law,  if  both  may  stand  together.  This  ground  is 
not  taken,  because  such  an  effect  involves  an  indecent  censure  upon 
the  legislature  for  passing  contradictory  laws,  since  the  censure  only 
applies  where  the  contradiction  appears  in  the  same  law ;  and  it  does 
not  follow,  that  a  provision  which  is  proper  at  one  time,  may  not  be 
improper  at  another,  when  circumstances  are  changed :  but  the  ground 
of  argument  is,  that  a  change  ought  not  to  be  presumed.  Yet,  if  there 
is  sufficient  evidence  of  such  a  change  in  the  legislative  will,  and  the 
two  laws  are  in  collision,  we  are  forced  to  presume  it.  What,  then,  is 
the  evidence  of  legislative  will?  In  fact  and  in  law,  we  are  at  war:  an 
American  vessel,  fighting  with  a  French  vessel,  to  subdue  and  make 
her  prize,  is  fighting  with  an  enemy,  accurately  and  technically  speak- 
ing: and  if  this  be  not  sufficient  evidence  of  the  legislative  mind,  it  is 
explained  in  the  same  law.  The  sixth  and  the  ninth  sections  of  the 
act  speak  of  prizes,  which  can  only  be  of  property  taken  at  sea  from 
an  enemy,  jure  belli;  and  the  ninth  section  speaks  of  prizes  as  taken 
from  an  enemy,  in  so  many  words,  alluding  to  prizes  which  had  been 
previously  taken ;  but  no  prize  could  have  been  then  taken  except 
from  France :  prizes  taken  from  France  were,  therefore,  taken  from 
the  enemy.  This  then,  is  a  legislative  interpretation  of  the  word  enemy ; 
and  if  the  enemy,  as  to  prizes,  surely  they  preserve  the  same  character 
as  to  recaptures. 

Besides,  it  may  be  fairly  asked,  why  should  the  rate  of  salvage  be 
different  in  such  a  war  as  the  present,  from  the  salvage  in  a  war  more 
solemn  or  general?  And  it  must  be  recollected,  that  the  occasion  of 
making  the  law  of  March,  1799.  was  not  only  to  raise  the  salvage,  but 
to  apportion  it  to  the  hazard  in  which  the  property  retaken  was  placed ; 


112         JUDGMENTS  OF  THE  SUPREME  COURT 

a  circumstance  for  which  the  former  salvage  law  had  not  provided. 
The  two  laws,  upon  the  whole,  can  not  be  rendered  consistent,  unless 
the  court  could  wink  so  hard  as  not  to  see  and  know,  that  in  fact,  in 
the  view  of  Congress,  and  to  every  intent  and  purpose,  the  possession 
by  a  French  armed  vessel  of  an  American  vessel,  was  the  possession 
of  an  enemy:  and  therefore,  in  my  opinion,  the  decree  of  the  circuit 
court  ought  to  be  affirmed. 

Chase,  Justice. — The  judges  agreeing  unanimously  in  their  opinion, 
I  presumed,  that  the  sense  of  the  court  M^ould  have  been  delivered  by 
the  president  and  therefore,  I  have  not  prepared  a  formal  argument 
on  the  occasion.  I  find  no  difficulty,  however,  in  assigning  the  general 
reasons  which  induce  me  to  concur  in  affirming  the  decree  of  the 
circuit  court. 

An  American  public  vessel  of  war  recaptures  an  American  merchant 
vessel  from  a  French  privateer,  after  ninety-six  hours  possession,  and 
the  question  is  stated,  what  salvage  ought  to  be  allowed?  There  are 
two  laws  on  the  subject:  by  the  first  of  which,  only  one-eighth  of  the 
value  of  the  recaptured  property  is  allowed;  but  by  the  second,  the 
recaptor  is  entitled  to  a  moiety.  The  recapture  happened  after  the 
passing  of  the  latter  law;  and  the  whole  controversy  turns  on  the 
single  question,  whether  France  was,  at  that  time,  an  enemy?  If 
France  was  an  enemy,  then  the  law  obliges  us  to  decree  one-half  of 
the  value  of  the  ship  and  cargo  for  salvage:  but  if  France  was  not  an 
enemy,  then  no  more  than  one-eighth  can  be  allowed. 

The  decree  of  the  circuit  court  (in  which  I  presided)  passed  by  con- 
sent; but  although  I  never  gave  an  opinion,  I  have  never  entertained 
a  doubt  on  the  subject.  Congress  is  empowered  to  declare  a  general 
war,  or  Congress  may  wage  a  limited  war;  limited  in  place,  in  objects, 
and  in  time.  If  a  general  war  is  declared,  its  extent  and  operations 
are  only  restricted  and  regulated  by  the  jus  belli,  forming  a  part  of 
the  law  of  nations ;  but  if  a  partial  war  is  waged,  its  extent  and  opera- 
tion depend  on  our  municipal  laws. 

What,  then,  is  the  nature  of  the  contest  subsisting  between 
America  and  France?  In  my  judgment,  it  is  a  limited,  partial  war. 
Congress  has  not  declared  war,  in  general  terms ;  but  Congress  has 
authorized  hostilities  on  the  high  seas,  by  certain  persons,  in  certain 
cases.  There  is  no  authority  given  to  commit  hostilities  on  land ;  to 
capture  unarmed  French  vessels,  nor  even  to  capture  French  armed 


BAS  V.  TINGY  (THE  ELIZA)  113 

vessels,  lying  in  a  French  port;  and  the  autliority  is  not  given  indis- 
criminately to  every  citizen  of  America,  against  every  citizen  of  France, 
but  only  to  citizens  appointed  by  commissions,  or  exposed  to  immediate 
outrage  and  violence.  So  far  it  is,  vmquestionably,  a  partial  war;  but. 
nevertheless,  it  is  a  public  war,  on  account  of  the  public  authority  from 
which  it  emanates. 

There  are  four  acts,  authorized  by  our  government,  that  are  demon- 
strative of  a  state  of  war.  A  belligerent  power  has  a  right,  by  the  law 
of  nations,  to  search  a  neutral  vessel ;  and  upon  suspicion  of  a  viola- 
tion of  her  neutral  obligations,  to  seize  and  carry  her  into  port  for 
further  examination.  But  by  the  acts  of  Congress,  an  American  vessel 
is  authorized:  1st.  To  resist  the  search  of  a  French  public  vessel: 
2d.  To  capture  any  vessel  that  should  attempt,  by  force,  to  compel 
submission  to  a  search :  3d.  To  recapture  any  American  vessel,  seized  by 
a  French  vessel:  and  4th.  To  capture  any  French  armed  vessel,  wherever 
found,  on  the  high  seas.  This  suspension  of  the  law  of  nations,  this 
right  of  capture  and  recapture,  can  only  be  authorized  by  an  act  of  the 
government,  which  is,  in  itself,  an  act  of  hostility.  But  still,  it  is  a 
restrained  or  limited  hostility ;  and  there  are,  undoubtedly,  many  rights 
attached  to  a  general  war,  which  do  not  attach  to  this  modification  of 
the  powers  of  defense  and  aggression.  Hence,  whether  such  shall  be 
the  denomination  of  the  relative  situation  of  America  and  France,  has 
occasioned  great  controversy  at  the  bar;  and  it  appears,  that  Sir 
William  Scott  also  was  embarrassed  in  describing  it,  when  he  ob- 
served, "that  in  the  present  state  of  hostility  (if  so  it  may  be  called) 
between  America  and  France,"  it  is  the  practice  of  the  English  court 
of  admiralty,  to  restore  recaptured  American  property,  on  payment  of 
a  salvage.  (The  Santa  Cms,  1  Rob.  54.)  But,  for  my  part,  I  can 
not  perceive  the  difficulty  of  the  case.  As  there  may  be  a  public  gen- 
eral war,  and  a  public  qualified  war ;  so  there  may,  upon  correspondent 
principles,  be  a  general  enemy,  and  a  partial  enemy.  The  designation 
of  "enemy"  extends  to  a  case  of  perfect  war;  but  as  a  general  designa- 
tion, it  surely  includes  the  less,  as  well  as  the  greater,  species  of  war- 
fare. If  Congress  had  chosen  to  declare  a  general  war,  France  would 
have  been  a  general  enemy;  having  chosen  to  wage  a  partial  war, 
France  was,  at  the  time  of  the  capture,  only  a  partial  enemy ;  but  still 
she  was  an  enemy. 

It  has  been  urged,  however,  that  Congress  did  not  intend  the  pro- 
visions of  the  act  of  March,  1799,  for  the  case  of  our  subsisting  quali- 


114  JUDGMENTS  OF  THE  SUPREME  COURT 

fied  hostility  with  France,  but  for  the  case  of  a  future  state  of  gen- 
eral war  with  any  nation :  I  think,  however,  that  the  contrary  appears 
from  the  terms  of  the  law  itself,  and  from  the  subsequent  repeal.  In 
the  9th  section,  it  is  said,  that  all  the  money  accruing,  "or  which  has 
already  accrued  from  the  sale  of  prizes,"  shall  constitute  a  fund  for 
the  half-pay  of  officers  and  seamen.  Now,  at  the  time  of  making  this 
appropriation,  no  prizes  (which  ex  vi  termini  implies  a  capture  in  a 
.state  of  war)  had  been  taken  from  any  nation  but  France,  those  which 
had  been  taken,  were  not  taken  from  France  as  a  friend ;  they  must, 
consequently,  have  been  taken  from  her  as  an  enemy ;  and  the  retro- 
spective provision  of  the  law  can  only  operate  on  such  prizes.  Be- 
sides, when  the  13th  section  regulates  "the  bounty  given  by  the  United 
States  on  any  national  ship  of  war,  taken  from  the  enemy,  and  brought 
into  port,"  it  is  obvious,  that  even  if  the  bounty  has  no  relation  to 
previous  captures,  it  must  operate  from  the  moment  of  passing  the 
act,  and  embraces  the  case  of  a  national  ship  of  war,  taken  from 
France  as  an  enemy,  according  to  the  existing  qualified  state  of  hos- 
tilities. But  the  repealing  act,  passed  on  the  3d  of  March,  1800  (sub- 
sequent to  the  recapture  in  the  present  case)  ought  to  silence  all  doubt 
as  to  the  intention  of  the  legislature;  for,  if  the  act  of  March,  1799, 
did  not  apply  to  the  French  Republic,  as  an  enemy,  there  could  be  no 
reason  for  altering  or  repealing  that  part  of  it,  which  regulates  the  rate 
of  salvage  on  recaptures. 

The  acts  of  Congress  have  been  analyzed,  to  show,  that  a  war  is  not 
openly  denounced  against  France,  and  that  France  is  nowhere  ex- 
pressly called  the  enemy  of  America:  but  this  only  proves  the  circum- 
spection and  prudence  of  the  legislature.  Considering  our  national 
prepossessions  in  favor  of  the  French  Republic,  Congress  had  an 
arduous  task  to  perform,  even  in  preparing  for  necessary  defense  and 
just  retaliation.  As  the  temper  of  the  people  rose,  however,  in  resent- 
ment of  accumulated  wrongs,  the  language  and  the  measures  of  the 
government  became  more  and  more  energetic  and  indignant;  though 
hitherto  the  popular  feeling  may  not  have  been  ripe  for  a  solemn  decla- 
ration of  war;  and  an  active  and  powerful  opposition  in  our  public 
councils,  has  postponed,  if  not  prevented,  that  decisive  event,  which 
many  thought  would  have  best  suited  the  interest,  as  well  as  the  honor, 
of  the  United  States.  The  progress  of  our  contest  with  France,  indeed, 
resembles  much  the  progress  of  our  revolutionary  contest ;  in  which, 
watching  the  current  of  public  sentiment,  the  patriots  of  that  day  pro- 


BAS  V.  TINGY  (THE  ELIZA)  115 

ceeded,  step  by  step,  from  the  supplicatory  language  of  petitions  for  a 
redress  of  grievances,  to  the  bold  and  noble  declaration  of  national  in- 
dependence. Having,  then,  no  hesitation  in  pronouncing  that  a  partial 
war  exists  between  America  and  France,  and  that  France  was  an 
enemy,  within  the  meaning  of  the  act  of  March,  1799,  my  voice  must 
be  given  for  affirming  the  decree  of  the  circuit  court. 

Paterson,  Justice. — As  the  case  appears  on  the  record,  and  has  been 
accurately  stated  by  the  counsel,  and  by  the  judges  who  have  delivered 
their  opinions,  it  is  not  necessary  to  recapitulate  the  facts.  My  opinion 
shall  be  expressed  in  a  few  words.  The  United  States  and  the  French 
Republic  are  in  a  qualified  state  of  hostility.  An  imperfect  war,  or  a 
war,  as  to  certain  objects,  and  to  a  certain  extent,  exists  between  the 
two  nations ;  and  this  modified  warfare  is  authorized  by  the  constitu- 
tional authority  of  our  country.  It  is  a  war  quoad  hoc.  As  far  as  Con- 
gress tolerated  and  authorized  the  war  on  our  part,  so  far  may  we  pro- 
ceed in  hostile  operations.  It  is  a  maritime  war,  a  war  at  sea,  as  to 
certain  purposes.  The  national  armed  vessels  of  France  attack  and 
capture  the  national  armed  vessels  of  the  United  States ;  and  the 
national  armed  vessels  of  the  United  States  are  expressly  authorized 
and  directed  to  attack,  subdue  and  take  the  national  armed  vessels  of 
France,  and  also  to  recapture  American  vessels.  It  is,  therefore,  a 
public  war  between  the  two  nations,  qualified  on  our  part,  in  the  man- 
ner prescribed  by  the  constitutional  organ  of  our  country.  In  such  a 
state  of  things,  it  is  scarcely  necessary  to  add,  that  the  term  "enemy," 
appHes;  it  is  the  appropriate  expression,  to  be  limited  in  its  signifi- 
cation, import  and  use,  by  the  qualified  nature  and  operation  of  the  war 
on  our  part.  The  word  enemy  proceeds  the  full  length  of  the  war, 
and  no  further.  Besides,  the  intention  of  the  legislature  as  to  the 
meaning  of  this  word,  enemy,  is  clearly  deducible  from  the  act  for  the 
government  of  the  navy,  passed  the  2d  of  March,  1799.  This  act 
embraces  the  past,  present  and  future,  and  contains  passages  which 
point  the  character  of  enemy  at  the  French,  in  the  most  clear  and  ir- 
resistible manner.  I  shall  select  one  paragraph,  namely,  that  which 
refers  to  prizes  taken  by  our  public  vessels,  anterior  to  the  passing  of 
the  latter  act.  The  word  prizes  in  this  section  can  apply  to  the  French, 
and  the  French  only.  This  is  decisive  on  the  subject  of  legislative 
intention. 

By  the  Court. — Let  the  decree  of  the  circuit  court  be  affirmed. 


116  JUDGMENTS  OF  THE  SUPREME  COURT 

TALBOT  V.  SEEM  AN,  (THE  AMELIAy 
Salvage. — Partial  war. — Foreign  laws 

Salvage  allowed  to  the  United  States  ship  of  war,  for  the  recapture  of  a 
Hamburg  vessel  out  of  the  hands  of  the  French  (France  and  Hamburg 
being  neutral  to  each  other),  on  the  ground  that  she  was  in  danger  of 
condemnation  under  the  French  decree  of  the  18th  January,  1798. 

The  United  States  and  France,  in  the  year  1799,  were  in  a  state  of  partial  war. 

To  support  a  demand  for  salvage,  the  recapture  must  be  lawful,  and  a 
meritorious  service  must  be  rendered. 

Probable  cause  is  sufficient  to  render  the  recapture  lawful. 

Where  the  amount  of  salvage  is  not  regulated  by  statute,  it  must  be  determined 
by  the  principles  of  general  law. 

Marine  ordinances  of  foreign  countries,  promulgated  by  the  executive,  by  order 
of  the  legislature  of  the  United  States,  may  be  read  in  the  courts  of  the 
United  States,  without  further  authentication  or  proof. 

Municipal  laws  of  foreign  countries  are  generally  to  be  proved  as  facts. 

This  was  a  writ  of  error  to  reverse  a  decree  of  the  Circuit  Court, 
which  reversed  the  decree  of  the  District  Court  of  New  York,  so  far 
as  it  allowed  salvage  to  the  recaptors  of  the  ship  Amelia  and  her  cargo. 

The  libel  in  the  district  court  was  filed  November  5,  1799,  by  Cap- 
tain Talbot,  in  behalf  of  himself  and  the  other  officers  and  crew  of  the 
United  States  ship  of  war  the  Constitution,  against  the  ship  Amelia, 
her  tackle,  furniture  and  cargo;  and  set  forth — 

1.  That  in  pursuance  of  instructions  from  the  President  of  the 
United  States  he  subdued,  seized,  etc.,  on  the  high  seas,  the  said  ship 
Amelia  and  cargo,  etc.,  and  brought  her  into  the  port  of  New  York. 

2.  That  at  the  time  of  capture,  she  was  armed  with  eight  carriage- 
guns,  and  was  under  the  command  of  citizen  Etienne  Prevost,  a 
French  officer  of  marine,  and  had  on  board,  besides  the  commander, 
eleven  French  mariners.  That  the  libellant  had  been  informed,  that 
she,  being  the  property  of  some  person  to  him  unknown,  sailed  from 
Calcutta,  an  English  port  in  the  East  Indies,  bound  for  some  port  in 
Europe;  that  upon  her  said  voyage  she  was  met  with  and  captured  by 
a  French  national  corvette,  called  La  Diligente,  commanded  by  L.  J. 
Dubois,  who  took  out  of  her  the  master  and  crew  of  the  Amelia,  with 
all  the  papers  relating  to  her  and  her  cargo,  and  placed  the  said 
Etienne  Prevost,  and  the  said  French  mariners,  on  board  of  her,  and 
ordered  her  to  St.  Domingo  for  adjudication,  as  a  good  and  lawful 


1  1  Cranch,  1 ;  August  term,  1801. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  117 

prize;  and  that  she  remained  in  the  full  and  peaceable  possession  of 
the  French  from  the  time  of  her  capture,  for  the  space  of  ten  days, 
whereby,  the  libellant  was  advised,  that,  as  well  by  the  law  of  nations 
as  by  the  particular  laws  of  France,  the  said  ship  became,  and  was  to 
be  considered,  as  a  French  ship. 

Whereupon,  he  prayed  usual  process,  etc.,  and  condemnation ;  or,  in 
case  restoration  should  be  decreed,  that  it  might  be  on  payment  of  such 
salvage  as  by  law  ought  to  be  paid  for  the  same. 

The  claim  and  answer  of  Hans  Frederic  Seeman,  in  behalf  of 
Messrs.  Chapeau  Rouge  &  Co.,  of  Hamburg,  owners  of  the  ship  Amelia 
and  her  cargo,  stated,  that  the  said  ship,  commanded  by  Jacob  F. 
Engelbrecht,  as  master,  sailed  on  the  20th  of  February,  1798,  from 
Hamburg,  on  a  voyage  to  the  East  Indies,  where  she  arrived  safe;  that 
in  April,  1799,  she  left  Calcutta,  bound  to  Hamburg;  that  during  her 
voyage,  and  at  the  time  of  her  capture  by  the  French,  she  and  her 
cargo  belonged  to  Messrs.  Chapeau  Rouge  &  Co.,  citizens  of  Ham- 
burg, and  if  restored,  she  will  be  wholly  their  property;  that  on  the 
6th  of  September,  on  her  voyage  home,  she  was  captured  on  the  high 
seas  by  a  French  armed  vessel,  commanded  by  citizen  Dubois,  who 
took  out  the  master  and  thirteen  of  her  crew,  and  all  her  papers, 
leaving  on  board  the  claimant,  who  was  mate  of  the  Amelia,  the  doctor 
and  five  other  men.  That  the  French  commander  put  on  board  twelve 
hands,  and  ordered  her  to  St.  Domingo,  and  parted  from  her  on  the 
fifth  day  after  her  capture.  That  on  the  15th  of  September,  the 
Amelia,  while  in  possession  of  the  French,  was  captured,  without  any 
resistance  on  her  part,  by  the  said  ship  of  war  the  Constitution,  and 
brought  into  New  York.  That  the  Amelia  had  eight  carriage  guns,  it 
being  usual  for  all  vessels,  in  the  trade  she  was  carrying  on,  to  be 
armed,  even  in  times  of  general  peace.  That  there  being  peace  be- 
tween France  and  Hamburg,  at  the  time  of  the  first  capture,  and  also 
between  the  United  States  and  Hamburg,  and  between  the  United 
States  and  France,  the  possession  of  the  Amelia  by  the  French,  in  the 
manner,  and  for  the  time  stated  in  the  said  libel,  could,  neither  by  the 
law  of  nations,  nor  by  the  laws  of  France,  nor  by  those  of  the  United 
States,  change  the  property  of  the  said  ship  Amelia  and  her  cargo,  or 
make  the  same  liable  to  condemnation  in  a  French  court  of  admiralty ; 
that  the  same  could  not,  therefore,  be  considered  as  French  property: 
wherefore,  he  prayed  restoration  in  like  plight  as  at  the  time  of  cap- 
ture by  the  ship  Constitution,  with  costs  and  charges. 


118  JUDGMENTS  OF  THE  SUPREME  COURT 

On  the  16th  of  December,  1799,  the  district  judge,  by  consent  of 
parties  made  an  interlocutory  decree,  directing  the  marshal  to  sell 
the  ship  and  cargo,  and  bring  the  money  into  court;  and  that  the 
clerk  should  pay  half  of  the  amount  of  sales  to  the  claimant,  on  his 
giving  security  to  refund,  in  case  the  court  should  so  decree ;  and  that 
the  clerk  should  retain  the  other  half  in  his  hands,  together  with  all 
costs  and  charges,  etc. 

Afterwards,  on  the  25th  of  February,  1800,  the  judge  of  the  district 
court  (Hobart)  made  his  final  decree,  directing  half  of  the  gross 
amount  of  sales  of  the  ship  and  cargo,  without  any  deduction  what- 
ever, to  be  paid  to  the  libellant  for  the  use  of  the  officers  and  crew 
of  the  ship  Constitution,  to  be  distributed  according  to  the  act  of  Con- 
gress for  the  government  of  the  navy  of  the  United  States.  And  that 
out  of  the  other  moiety,  the  clerk  should  pay  the  officers  of  the  court, 
and  the  proctors  for  the  libellant  and  claimant,  their  taxed  costs  and 
charges,  and  that  the  residue  should  be  paid  to  the  owners  of  the 
Amelia,  or  their  agent.  From  this  decree,  the  claimant  appealed  to  the 
circuit  court. 

At  the  Circuit  Court  for  the  district  of  New  York,  in  April,  1800, 
before  Judge  Washington  and  the  district  judge,  the  cause  was  ar- 
gued by  B.  Livingston  and  Burr  for  the  appellant,  and  Harrison  and 
Hamilton,  for  the  respondent;  and  on  the  9th  of  April,  1800,  the 
circuit  court  made  the  following  decree,  viz. : 

That  the  decree  of  the  district  court,  so  far  forth  as  it  orders 
a  payment,  by  the  clerk,  of  a  moiety  of  the  gross  amount  of  sales, 
to  Silas  Talbot,  commander,  etc.,  and  to  the  officers  and  crew  of 
the  said  ship  Co'nstitution,  is  erroneous,  and  so  far  forth,  be  re- 
versed without  costs;  that  is  to  say,  the  court  considering  the 
admission  on  the  part  of  the  respondent,  that  the  papers  brought 
here  by  Jacob  Frederic  Engelbrecht,  master  of  the  ship  Amelia, 
prove  her  and  her  cargo  to  be  Hamburg  property,  and  also  con- 
sidering that  as  the  nation  to  which  the  owners  of  the  said  ship 
and  cargo  belong,  is  in  amity  with  the  French  Republic,  the  said 
ship  and  cargo  could  not,  consistently  with  the  laws  of  nations, 
be  condemned  by  the  French  as  a  lawful  prize,  and  that,  there- 
fore, no  service  was  rendered  by  the  United  States  ship  of  war 
the  Constitution,  or  by  the  commander,  officers  or  crew  thereof, 
by  the  recapture  aforesaid. 

Whereupon,  it  is  ordered,  adjudged  and  decreed  by  the  court, 
and  it  is  hereby  ordered,  adjudged  and  decreed  by  the  authority 
of  the  same,  that  the  former  part  of  the  decree  of  the  district 


TALBOT  V.  SEEMAN  (THE  AMELIA)  119 

court,  by  which  a  moiety  of  the  proceeds  is  allowed  to  the  com- 
mander, officers  and  crew  aforesaid,  be  and  the  same  is  hereby 
reversed.  And  the  court  further  considering  all  the  circumstances 
of  the  present  case,  arising  from  the  capture  and  recapture  stated 
in  the  libel  and  claim  and  answer,  and  that  by  the  sale  of  the  said 
ship  Amelia  and  her  cargo,  made  with  the  express  consent  of  the 
appellant,  the  costs  and  charges  in  this  cause  have  nearly  all  ac- 
crued, and  that,  therefore,  the  expenses  should  be  defrayed  out 
of  the  proceeds,  thereupon,  it  is  hereby  further  ordered,  adjudged 
and  decreed  by  the  court,  that  so  much  of  the  said  decree  of  the 
said  district  court  as  relates  to  the  payment  by  the  clerk,  to  the 
several  officers  of  the  court,  and  to  the  proctors  of  the  libellant 
and  claimant  in  this  cause,  of  their  taxed  costs  and  charges,  out 
of  the  other  moiety  of  the  said  proceeds,  and  also  of  the  residue 
of  the  said  last-mentioned  moiety,  after  deducting  the  costs  and 
charges  aforesaid,  to  the  owner  or  owners  of  the  said  ship  Amelia 
and  her  cargo,  or  to  their  legal  representatives,  be  and  the  same 
is  hereby  affirmed. 

To  reverse  this  decree,  the  libellant  sued  out  a  writ  of  error  to 
the  Supreme  Court,  and  by  consent  of  parties,  the  following  statement 
of  facts  was  annexed  to  the  record  which  came  up : 

The  ship  Amelia  sailed  from  Calcutta,  in  Bengal,  in  the  month 
of  April,  1799,  loaded  with  a  cargo  of  the  product  and  manufac- 
ture of  that  country,  consisting  of  cotton,  sugars  and  dry  goods 
in  bales,  and  was  bound  to  Hamburg.  On  the  6th  of  September. 
in  the  same  year,  she  was  captured,  while  in  the  pursuit  of  her 
said  voyage,  by  the  French  national  corvette  La  Diligente,  L.  J. 
Dubois,  commander,  who  took  out  her  master  and  part  of  her 
crew,  together  with  most  of  her  papers,  and  placed  a  prize-master 
and  French  sailors  on  board  of  her,  ordering  the  prize-master  to 
conduct  her  to  St.  Domingo,  to  be  judged  according  to  the  laws 
of  war.  On  the  l.^th  of  the  same  month  of  September,  the  United 
States  ship  of  war  the  Constitution,  commanded  by  Silas  Talbot, 
Esq.,  the  libellant,  fell  in  with  and  recaptured  the  Amelia,  she 
being  then  in  full  possession  of  the  French,  and  pursuing  her 
course  for  St.  Domingo,  according  to  the  orders  received  from 
the  captain  of  the  French   corvette. 

At  the  time  of  the  recapture,  the  Amelia  had  eight  iron  cannon 
mounted,  and  eight  wooden  guns,  with  which  she  left  Calcutta,  as 
before  stated.  From  such  of  the  ship's  papers  as  were  found  on 
board,  and  the  testimony  in  the  cause,  the  ship  Amelia  and  her 
cargo  appear  to  have  been  the  property  of  Chapeau  Rouge,  a  citi- 
zen of  Hamburg,  residing  and  carrying  on  commerce  in  that 
place.    It  is  conceded,  that  the  Republic  of  France  and  the  city  of 


120         JUDGMENTS  OF  THE  SUPREME  COURT 

Hamburg  are  not  in  a  state  of  hostility  to  each  other;  and  that 
Hamburg  is  to  be  considered  as  neutral  between  the  present  bel- 
ligerent powers. 

The  Amelia  and  her  cargo,  having  been  sent  by  Captain  Talbot 
to  New  York,  were  there  libelled  in  the  district  court,  and  such 
proceedings  were  thereupon  had  in  that  court,  and  the  circuit 
court  for  that  district,  as  may  appear  by  the  writ  of  error  and 
return. 

The  cause  now  came  on  to  be  argued,  at  August  term,  1801,  by 
Bayard  and  Ingersoll,  for  the  libellant,  and  Dallas,  Mason  and  Levy, 
for  the   claimant. 

For  the  libellant,  three  points  were  made.  1.  That  at  the  time,  and 
under  the  circumstances,  the  ship  Amelia  was  liable  to  capture  by 
the  law,  and  instructions  to  seize  French  armed  vessels,  for  the  purpose 
of  being  brought  into  port,  and  submitted  to  legal  adjudication  in 
the  courts  of  the  United  States.  2.  That  Captain  Talbot,  by  this  cap- 
ture, saved  the  ship  Amelia  from  condemnation  in  a  French  court  of 
admiralty.  3.  That  for  this  service,  upon  abstract  principles  of  equity 
and  justice,  according  to  the  law  of  nations,  and  the  acts  of  Congress, 
the  recaptors  are  entitled  to  a  compensation  for  salvage. 

I.  Had  Captain  Talbot  a  right  to  seize  the  Amelia,  and  bring  her 
into  port  for  adjudication? 

The  acts  of  Congress  on  this  subject  ought  all  to  be  considered  to- 
gether and  in  one  view.  This  is  the  general  rule  of  construction, 
where  several  acts  are  made  in  pari  materia.  Plowd.  206;  1  Atk.  457, 
458. 

The  first  act  authorizing  captures  of  French  vessels,  is  that  of  28th 
May,  1798.  (1  U.  S.  Stat.  561.)  The  preamble  recites,  that  "whereas, 
armed  vessels  sailing  under  authority,  or  pretense  of  authority,  from 
the  Republic  of  France,  have  committed  depredations  on  the  com- 
merce of  the  United  States,"  etc.,  therefore  it  is  enacted,  that  the 
President  be  authorized  to  instruct  and  direct  the  commanders  of  the 
armed  vessels  of  the  United  States  "to  seize,  take  and  bring  into  any 
port  of  the  United  States,  to  be  proceeded  against  according  to  the 
laws  of  nations,  any  such  armed  vessel,  which  shall  have  committed,  or 
which  shall  be  found  hovering  on  the  coasts  of  the  United  States,  for 
the  purpose  of  committing,  depredations  on  the  vessels  belonging  to 
citizens  thereof ;  and  also  to  retake  any  ship  or  vessel  of  any  citizen 


TALBOT  V.  SEEAIAN  (THE  AMELIA)  121 

or  citizens  of  the  United  States,  which  may  have  been  captured  by 
any  such  armed  vessel." 

The  Amelia  was  "an  armed  vessel,  sailing  under  authority  from  the 
Republic  of  France,"  and  if  she  had  committed,  or  had  been  found 
hovering  on  the  coast,  for  the  purpose  of  committing,  depredations 
on  the  vessels  of  the  citizens  of  the  United  States,  she  would  have 
been  clearly  liable  to  capture  under  this  act  of  Congress.  This  act  is 
entitled  "an  act  more  effectually  to  protect  the  commerce  and  coasts 
of  the  United  States;"  and  by  it,  the  objects  of  capture  are  limited 
to  "armed  vessels,  sailing  under  authority,  or  pretense  of  authority, 
from  the  Republic  of  France,  which  shall  have  committed,  or  which 
shall  be  found  hovering  on  the  coasts  of  the  United  States,  for  the 
purpose  of  committing,  depredations,"  etc. 

It  was  soon  perceived,  that  a  right  of  capture,  so  limited,  would  not 
afford,  what  the  act  contemplated,  an  effectual  protection  to  the  com- 
merce of  the  United  States.  Congress,  therefore,  on  the  9th  July,  1798, 
at  the  same  session,  passed  the  "act  further  to  protect  the  commerce 
of  the  United  States"  (1  U.  S.  Stat.  578),  and  thereby  took  off  the 
restriction  of  the  former  act,  which  limited  captures  to  vessels  having 
actually  committed  depredation,  or  which  were  hovering  on  the  coast 
for  that  purpose.  This  act  authorizes  the  capture  of  any  "armed 
French  vessel,  on  the  high  seas,"  and  if  the  Amelia  was  such  an  armed 
French  vessel  as  is  contemplated  by  this  act,  she  was  liable  to  capture, 
and  it  was  the  duty  of  Captain  Talbot  to  take  her  and  bring  her  into 
port. 

Another  act  was  passed  at  the  same  session,  on  the  25th  June.  1798 
(1  U.  S.  Stat.  572),  entitled  "an  act  to  authorize  the  defense  of 
the  merchant  vessels  of  the  United  States  against  French  depreda- 
tions," which,  as  it  constitutes  a  part  of  that  system  of  defense  and 
opposition  which  the  legislature  had  in  view,  ought  to  be  taken  into 
consideration.  It  enacts,  that  merchant  vessels  of  citizens  of  the 
United  States  may  oppose  and  defend  against  any  search,  restraint 
or  seizure  which  shall  be  attempted  "by  the  commander  or  crew  of 
any  armed  vessel,  sailing  under  French  colors,  or  acting,  or  pretending 
to  act,  by  or  under  the  authority  of  the  French  Republic ;"  and  in 
case  of  attack,  may  repel  the  same,  and  subdue  and  capture  the  vessel. 

The  court,  in  construing  any  one  of  these  laws,  will  not  confine 
themselves  to  the  strict  letter  of  that  particular  law,  but  will  consider 
the  spirit  of  the  times,  and  the  object  and  intention  of  the  legislature. 


122  JUDGMENTS  OF  THE  SUPREME  COURT 

It  is  evident,  by  the  title  of  the  act  of  the  9th  July,  1798,  and  by  the 
general  complexion  of  all  the  acts  of  that  session  upon  the  subject, 
that  it  was  not  the  intention  of  Congress,  by  the  act  of  July  9th,  to 
restrict  the  cases  of  capture  contemplated  by  the  act  of  28th  May,  but 
to  enlarge  them.  The  spirit  of  the  people  was  roused ;  they  demanded 
a  more  vigorous  and  a  more  effectual  opposition  to  the  aggressions  of 
France,  and  the  spirit  of  Congress  rose  with  that  of  the  people.  It 
can  not  be  supposed,  that  having,  in  May,  used  the  expression,  "armed 
vessels,  sailing  under  authority,  or  pretense  of  authority,  from  the  Re- 
public of  France,"  and  in  June  the  expression,  "any  armed  vessel, 
sailing  under  French  colors,  or  acting,  or  pretending  to  act,  by  or 
under  the  authority  of  the  French  Republic,"  they  meant  to  restrict 
the  cases  of  capture,  in  July,  when  they  used  the  words  "any  armed 
French  vessel."  On  the  contrary,  the  confidence  in  the  national  opinion 
was  increased,  and  further  measures  of  defense  were  adopted,  intend- 
ing not  to  recede  from  anything  done  before,  but  to  amplify  the  oppo- 
sition. The  act  of  July  was  in  addition  to,  not  in  derogation  from,  the 
act  of  May.  Congress  evidently  meant  the  same  description  of  vessels, 
in  each  of  those  acts.  "Armed  vessels,  sailing  under  authority,  or 
pretense  of  authority,  of  France,"  and  "armed  vessels  sailing  under 
French  colors,  or  acting,  or  pretending  to  act,  under  the  authority  of 
the  French  Republic,"  and  "armed  French  vessels,"  must  be  under- 
stood to  be  the  same. 

If  there  is  a  difference,  no  reason  can  be  given  for  it.  A  vessel,  in 
the  circumstances  of  the  Amelia,  was  as  capable  of  annoying  our  com- 
merce, as  if  she  had  been  owned  by  Frenchmen.  Her  force  was  at  the 
command  of  France,  and  there  can  be  no  doubt,  but  she  would  have 
captured  any  unarmed  American  that  might  have  fallen  in  her  way. 
She  was,  therefore,  one  of  the  objects  of  that  hostility  which  Congress 
had  authorized.  Congress  have  the  power  of  declaring  war:  they  may 
declare  a  general  war  or  a  partial  war :  so,  it  may  be  a  general  mari- 
time war,  or  a  partial  maritime  war. 

This  court,  in  the  case  of  Bas  v.  Tingy  {The  Eliza,  4  Dall.  37),  have 
decided,  that  the  situation  of  this  country  with  regard  to  France,  was 
that  of  a  partial  and  limited  war.  The  substantial  question  here  is, 
whether  the  case  of  the  Amelia  is  a  casus  belli?  whether  she  was  an 
object  of  that  limited  war?  The  kind  of  war  which  existed  was  a  war 
against  all  French  force  found  upon  the  ocean,  to  seize  it  and  bring 
it  in,  that  it  might  not  injure  our  commerce.    It  is  precisely  as  if  Con- 


TALBOT  V.  SEEMAN  (THE  AMELIA)  123 

gress  had  authorized  the  capture  of  all  French  vessels,  excepting  those 
unarmed.  If  such  had  been  the  expressions,  there  could  be  no  doubt 
of  the  right  to  capture.  The  object  of  the  war  being  to  destroy  French 
armed  force,  and  not  French  property,  it  made  no  difference  in  whom 
the  absolute  property  of  the  vessel  was,  if  her  force  was  under  the 
command  of  France.  Suppose,  the  Amelia  had  captured  an  American, 
by  what  nation  would  the  capture  be  made?  by  Hamburg  or  by  France? 
There  can  be  no  doubt,  but  the  injury  would  be  attributed  to  France. 
She  was  under  French  colors,  armed,  and  to  every  intent  an  object  of 
the  partial  war  which  existed ;  and  if  so,  her  case  is  governed  by  the 
rights  of  war,  and  by  the  law  of  nations,  as  they  exist  in  a  state  of 
general  war. 

Perhaps,  it  may  be  said,  that  this  proves  too  much,  and  that,  if  true, 
the  Amelia  must  be  condemned  as  prize.  This  would  be  true,  if  the 
rights  of  a  third  party  did  not  interfere.  Having  accomplished  the 
object  of  the  war,  as  it  relates  to  this  case,  in  wresting  from  France 
the  armed  force,  we  must  now  respect  the  rights  of  a  neutral  nation, 
and  restore  the  property  to  its  lawful  owner.  But  this  is  a  subsequent 
consideration :  it  is  only  necessary  now  to  show  that  the  capture  was 
so  far  a  lawful  act,  as  to  be  capable  of  supporting  a  claim  of  salvage. 
At  first  view,  she  certainly  presented  the  appearance  of  such  an  armed 
French  ship  as  the  libellant  was  bound  in  duty  to  seize  and  bring  in, 
at  least,  for  further  examination.  He  had  probable  cause,  at  least, 
which  is  sufficient  to  justify  the  seizure  and  detention.  But  if  she  was 
liable  to  be  condemned  by  France,  being  in  the  hands  and  possession 
of  the  French,  she  was  within  the  scope  of  the  war  which  existed  be- 
tween the  United  States  and  France;  she  was  within  the  meaning  of 
the  act  of  Congress.^ 

The  act  of  July  gives  no  new  authority  to  recapture  American  ves- 
sels ;  it  only  gives  to  private  armed  vessels  the  same  right  which  the 
act  of  May  gives  to  the  public  armed  vessels,  to  make  captures  and  re- 
captures. But  the  act  of  May  only  authorizes  the  recapture  of  Ameri- 
can vessels,  "which  may  have  been  captured  by  any  such  armed  vessel," 
i.  c,  by  armed  vessels  sailing  under  authority  from  the  Republic  of 


1  Bayard. — What  authority  is  there  for  American  armed  vessels  to  recapture 
British  vessels  taken  by  the  French? 

Chase,  J. — Is  there  any  case,  where  it  has  been  decided  in  our  courts,  that 
such  a  recapture  was  lawful?    It  has  been  so  decided  in  the  English  courts. 

The  counsel  on  both  sides  admitted  that  no  such  case  had  occurred  in  this 
country. 


124         JUDGMENTS  OF  THE  SUPREME  COURT 

France,  and  which  shall  have  committed,  or  be  found  hovering  on 
the  coasts,  for  the  purpose  of  committing,  depredations  on  our  com- 
merce." Yet,  the  instructions  from  the  President  were  to  recapture 
all  American  vessels.  These  instructions  show  the  opinion  of  the 
executive  upon  the  construction  of  the  acts  of  Congress — and  for  that 
purpose  they  were  offered  to  be  read. 

The  counsel  for  the  claimant  objected  to  their  being  read,  because 
they  were  not  in  the  record.  The  counsel  for  the  libellant  contended, 
they  had  a  right  to  read  them  as  matter  of  opinion,  but  did  not  offer 
them  as  matter  of  fact.^     The  court  refused  to  hear  them. 

II.  The  second  point  is,  that  a  service  was  rendered  to  the  owners 
of  the  Amelia,  by  the  recapture,  inasmuch  as  she  was  thereby  saved 
from  condemnation  in  a  French  court  of  admiralty.  To  support  this 
position,  the  counsel  for  the  libellant  relied  on  the  general  system  of 
violation  of  neutral  rights  adopted  by  France. 

In  general  cases,  when  belligerents  respect  the  law  of  nations,  no 
salvage  can  be  claimed  for  the  recapture  of  a  neutral  vessel,  because 
no  service  is  rendered;  but  rather  a  disservice,  because  the  captured 
would,  in  the  courts  of  the  captors,  recover  damages  and  costs  for  the 
illegal  capture  and  detention. 

The  principle  upon  which  the  circuit  court  decided,  is  not  denied; 
but  it  is  contended,  that  a  service  was  rendered  by  the  recapture.  To 
show  this,  the  counsel  for  the  libellant  offered  to  read  the  message 
from  the  President  to  both  Houses  of  Congress,  of  4th  May,  1798, 
containing  the  communications  from  our  envoys  extraordinary  at 
Paris,  to  the  Department  of  State,  and  sundry  arrets  and  decrees  of 


1  Chase,  J. — I  am  against  reading  the  instructions,  because  I  am  against  bring- 
ing the  executive  into  court  on  any  occasion.  It  has  been  decided,  as  I  think, 
in  this  court  that  instructions  should  not  be  read.  I  think  it  was  in  a  case  of 
instructions  to  the  collectors.  It  was  opposed  by  Judge  Iredell,  and  the  opposi- 
tion acquiesced  in  by  the  court. 

Paterson,  J. — The  instructions  can  only  be  evidence  of  the  opinion  of  the 
executive,  which  is  not  binding  upon  us. 

Marshall,  C.  J. — I  have  no  objection  to  hearing  them,  but  they  will  have  no 
influence  on  my  opinion. 

Moore,  J.— Mr.  Bayard  can  state  all  they  contain,  and  they  may  be  considered 
as  part  of  his  argument. 

Bayard. — May  I  be  permitted  to  read  them  as  a  part  of  my  speech? 

The  Court. — We  are  willing  to  hear  them  as  the  opinion  of  Mr.  Bayard, 
but  not  as  the  opinion  of  the  executive. 

Bayard. — I  acquiesce  in  the  opinion  of  the  court.  My  reasons  for  wishing 
to  read  them  were,  because  the  opinion  of  learned  men,  and  men  of  science, 
will  always  have  some  weight  with  other  learned  men.  And  the  court  would 
consider  well  the  opinion  of  the  executive,  before  they  would  decide  contrary 
to  it 


TALBOT  V.  SEEMAN  (THE  AMELIA)  125 

the  Government  of  France,  in  violation  of  neutral  rights,  and  of  the 
law  of  nations ;  and  particularly  the  decree  of  the  council  of  five  hun- 
dred of  29th  Nivose,  an  6  (Jan.  18,  1798),  which  declares,  "that  the 
character  of  vessels,  relative  to  their  quality  of  neuter  or  enemy, 
shall  be  determined  by  their  cargo ;  in  consequence,  every  vessel  found 
at  sea,  loaded,  in  whole  or  in  part,  with  merchandise,  the  production  of 
England,  or  of  her  possessions,  shall  be  declared  good  prize,  whoever 
the  owner  of  these  goods  or  merchandise  may  be." 

The  counsel  for  the  claimant  objected  to  the  reading  of  those  dis- 
patches, because  they  were  matter  of  fact.  No  new  fact  can  be  shown 
on  the  writ  of  error.  Neither  the  pleadings,  nor  the  statement  of  facts 
accompanying  the  record,  give  notice  of  introducing  this  new  matter. 
By  the  act  of  Congress  (1  U.  S.  Stat.  83,  §  19),  a  state  of  the  case 
must  come  up  with  the  record ;  and  is  conclusive  on  this  court.  Wiscart 
v.  D'Auchy,  3  Dall.  321.  On  p.  327,  Ellsworth,  Chief  Justice,  said 
a  writ  of  error  removes  only  matter  of  law.  Arrets  and  decrees  of 
foreign  governments  are  matters  of  fact,  and  must  be  proved  as  such, 
and  the  court  can  not  notice  them  unless  shown  in  the  pleadings,  ad- 
mitted or  proved.  Freemoult  v.  Dedire,  1  P.  Wms.  429,  431 ;  Ber- 
nardi  v.  Motteux,  Doug.  557.  The  same  case  in  the  2d  edition,  pp. 
575-79.  In  that  case,  the  court  could  not  take  notice  of  the  arret 
of  July,  1778,  as  it  had  not  been  given  in  evidence  at  the  trial. 

The  general  conduct  of  France  is  a  matter  of  fact,  which  can  only 
be  noticed  by  the  sovereign  of  the  state.  Judgment  upon  a  writ  of 
error  must  be  upon  the  same  facts  upon  which  the  judgment  below 
was  predicated.  3  Bl.  Com.  405  (Williams's  edit.  407)  ;  8  T.  R.  434, 
438,  566.  If  it  is  matter  of  law,  it  is  not  such  law  as  is  binding  upon 
this  court,  and  therefore,  they  can  not  officially  take  notice  of  it. 
Foreign  laws  must  be  proved  as  facts.  3  Woodeson,  306;  2  Eq.  Cas. 
Abr.  289,  476;  Way  v.  Yally,  2  Salk.  651 ;  s.  c.  6  Mod.  195;  Mostyn 
V.  Fabrigas,  Cowp.  174—5.  The  law  must  be  given  in  evidence.  1  Bos. 
&  Pul.  138,  171,  175,  8  T.  R.  566.  Facts  can  not  be  adduced  to  con- 
tradict the  record.  8  T.  R.  438.  In  The  Prozndcntia,  2  Rob.  126 
(Am.  edit.),  Dr.  Scott  relied  on  the  king's  instructions,  but  that  was 
because  the  king  has  the  power  of  war  and  peace. 

A  state  of  the  case  is  like  a  special  verdict ;  nothing  new  can  be 
added  to  it.  In  The  Santa  Crus,  1  Rob.  57,  Dr.  Scott  required  the 
ordinances  of  Portugal  to  be  proved,  and  evidence  of  the  decisions  of 
their  tribunals  upon  them. 


126  JUDGMENTS  OF  THE  SUPREME  COURT 

On  the  contrary,  it  was  said  by  the  counsel  for  the  libellant,  that 
this  case  differs  from  evidence  offered  to  a  jury.  In  chancery,  if 
evidence  is  not  legal,  the  chancellor  will  hear  it,  but  will  give  it  no 
weight.  The  pamphlet  containing  the  dispatches  is  offered  to  be  read, 
not  to  show  what  are  the  municipal  laws  of  France,  but  what  is  the 
law  of  nations  in  France ;  to  show  how  it  has  been  modified  by  that 
government.  We  are  before  this  court  as  a  court  of  admiralty,  and 
not  as  a  court  of  common  law.  All  the  world  are  parties  to  a  decree 
of  a  court  of  admiralty.  Bernardi  v.  Motteux,  Doug.  560  or  581. 
This  court  is  now  to  decide  by  the  law  of  nations,  not  by  municipal 
regulations.  All  the  cases  cited  against  us  are  cases  in  common-law 
courts.  But  courts  of  admiralty  take  notice  of  foreign  ordinances 
which  affect  the  law  of  nations,  without  their  being  shown  in  evi- 
dence. The  Maria,  1  Rob.  288  (Eng.  ed.  341)  ;  and  s.  c.  1  Rob.  304 
(Eng.  ed.  363). 

The  object  in  reading  these  dispatches  is  to  show  that  the  law  of 
nations  was  not  respected  in  France ;  that  the  construction  of  their 
courts  of  admiralty  was  such,  that  their  decisions  could  not  conform 
to  the  law  of  nations ;  that  the  law  of  nations  has  been  so  modified 
in  France,  that  there  was  no  certainty  of  indemnity  for  neutrals,  and 
that  by  the  decrees  and  arrets  of  that  government,  the  Amelia  would 
have  been  condemned.  They  are  offered  as  the  official  communications 
of  our  authorized  agents  abroad  to  the  executive,  and  by  that  depart- 
ment communicated  to  Congress,  and  published,  in  conformity  to  an 
act  of  Congress  (1  U.  S.  Stat.  612),  for  the  information  of  the  citi- 
zens of  the  United  States.  This  act  of  Congress  has  made  them  proper 
evidence  before  this  court ;  who  are,  therefore,  bound  to  notice  them. 
On  the  subject  of  admitting  foreign  ordinances  in  a  court  of  admiralty, 
no  difficulty  ever  occurred.  The  objections  are  only  to  private  munici- 
pal regulations.  Such,  it  is  admitted,  must  be  proved  as  facts,  but  not 
when  they  are  offered  as  explaining  the  law  of  nations.  In  The  Maria, 
1  Rob.  288  (Am.  ed.),  this  very  decree  is  cited;  and  it  is  immaterial 
to  us,  whether  we  read  it  out  of  the  dispatches  or  out  of  the  book 
v/hich  the  opposite  counsel  have  already  cited  for  other  purposes.  By 
the  same  rule  that  they  read  pages  57  and  126,  we  may  surely  read 
page  288. 

On  the  part  of  the  claimant  it  was  replied :  That  this  decree  is  not 
an  act  of  Congress,  nor  the  law  of  nations,  but  simply  a  law  of  France. 
The  record  is  confined  to  the  facts  which  originally  came  up  with  the 


TALBOT  V.  SEEMAN  (THE  AMELIA)  127 

writ  of  error,  or  such  as  may  afterwards  be  procured  upon  a  sugges- 
tion of  diminution.  It  is  admitted,  that  in  equity,  on  an  appeal  to  the 
House  of  Lords,  nothing  new  can  be  received.  And  nothing  ought 
now  to  be  read  which  was  not  before  the  circuit  court,  or  which  that 
court  was  bound  to  notice.  In  the  cases  cited  by  the  opposite  counsel, 
the  arrets  were  read  by  consent.  A  common-law  court  is  as  much 
bound  as  a  court  of  admiralty,  to  take  notice  of  the  law  of  nations,  on 
a  question  where  that  law  applies ;  and  the  rules  by  which  common-law 
courts  are  bound,  as  to  evidence  of  the  law  of  nations,  are  equally 
binding  on  courts  of  admiralty. 

The  court  suffered  the  dispatches  and  decrees  of  France  to  be  read, 
but  reserved  the  question,  whether  they  ought  to  be  considered  in  their 
decision  of  this  cause,  until  the  whole  argument  of  the  case  should  be 
finished. 

The  counsel  for  the  libellant  proceeded  in  the  argument  on  the  second 
point.  The  decree  of  the  18th  of  January,  1798,  was  not  repealed,  until 
the  14th  of  December,  1799,  and  consequently,  was  in  full  force  at  the 
time  of  the  capture,  on  the  6th  of  September,  1799.  The  facts  stated 
in  the  appendix  to  vol.  2  of  Robinson's  Reports,  show  that  the  French 
had  discarded  the  law  of  nations,  and  that  their  conduct  towards  neu- 
trals had  been  such  as  to  exclude  every  possibility  of  escape.  So 
notorious  was  this  conduct,  that  Sir  William  Scott  makes  it  the  ground 
of  his  decision  in  various  cases. 

It  is  not  necessary  to  show,  that  the  Amelia  would  certainly  have 
been  condemned.  To  entitle  to  salvage,  it  is  only  necessary  to  show 
that  she  was  in  a  better  condition  by  the  recapture.  Her  cargo  was 
the  production  of  the  possessions  of  England,  and  therefore,  by  the 
decree  of  the  18th  January,  1798,  was  liable  to  condemnation.  The 
general  conduct  of  France  and  of  the  French  courts  of  admiralty 
towards  neutrals  has  been  repeatedly  adjudged  by  Sir  William  Scott 
a  good  ground  for  salvage.  (The  Two  Friends,  1  Rob.  232;  The  War 
Onskan,  2  ibid.  246.) 

III.  But  without  resortmg  to  the  general  principle  of  a  service  being 
a  ground  for  salvage,  we  claim  it  under  the  express  terms  of  the 
act  of  Congress  of  the  2d  of  March,  1799,  entitled  "an  act  for  the 
government  of  the  navy  of  the  United  States,"  §  7  (1  U.  S.  Stat. 
716),  by  which  it  is  enacted,  "that  for  the  ships  or  goods  belonging 
to  the  citizens  of  the  United  States,  or  to  the  citizens  or  subjects  of 


128         JUDGMENTS  OF  THE  SUPREME  COURT 

any  nation  in  amity  with  the  United  States,  if  retaken  from  the  enemy, 
within  twenty-four  hours,  the  owners  are  to  allow  one-eighth  part  of 
the  whole  value  for  salvage,  etc.,  and  if  after  ninety-six  hours,  one- 
half;  all  of  which  is  to  be  paid  without  any  deduction  whatsoever." 

In  the  case  of  Bas  v.  Tingy  (4  Dall.  37),  it  was  decided  by  this 
court,  that  France  was  to  be  considered  as  an  enemy.  The  case  of  the 
Amelia  comes  within  the  very  words  of  this  act  of  Congress.  She  is 
a  ship  belonging  to  citizens  of  a  nation  in  amity  with  the  United  States, 
retaken  from  the  enemy,  after  a  possession  of  ninety-six  hours. 

By  the  act  of  Congress  of  25th  June,  1798  (1  U.  S.  Stat.  572),  prop- 
erty of  American  citizens,  recaptured  by  armed  merchant  vessels,  is  to 
be  restored,  on  the  payment  of  not  less  than  one-eighth,  and  not  more 
than  one-half,  for  salvage.  And  by  the  act  of  the  3d  March,  1800, 
not  less  than  one-sixth  is  allowed  on  recapture  by  a  private  armed 
vessel,  and  one-eighth  by  a  public  ship-of-war.  If,  then,  the  recapture 
of  this  vessel  was  a  lawful  act,  and  if  service  was  rendered  thereby  to 
the  owners,  the  recaptors  are  entitled  to  salvage,  and  the  rate  of  that 
salvage  is,  by  the  act  of  Congress,  fixed  at  one-half  of  the  value  of 
the  ship  and  cargo. 

On  the  part  of  the  claimant,  it  was  said,  that  if  France  and  America 
were  at  peace,  the  recapture  was  not  authorized  by  the  law  of  nations. 
The  claim  of  salvage  must  rest  on  two  grounds:  1.  A  right  to  interfere. 
2.  A  benefit  conferred  on  the  owners. 

I.  It  is  admitted,  that  a  belligerent  has  a  right  to  detain  a  neutral 
vessel  and  carry  her  into  port  for  the  purpose  of  examination.  The 
possession  of  a  belligerent  must,  by  third  parties,  be  considered  as 
lawful,  whatever  may  be  the  motive  or  intent  of  such  possession.  (2 
Woodeson,  424.)  The  belligerent  has  a  lawful  right  to  search  mer- 
chant vessels,  and  this  right  can  not  be  considered  as  injurious  to  the 
fair  neutral  trader.  Resistance  to  such  search  is  unlawful,  and  such 
resistance,  a  rescue,  or  an  escape,  are  sufficient  causes  to  condemn  the 
neutral  vessel.  (Vattel,  lib.  3,  c.  7,  §  114,  p.  507;  The  Maria,  1  Rob. 
304.) 

The  act  of  the  recaptors,  then,  being  in  aid  of  the  unlawful  resistance 
of  the  neutral,  must  in  itself  be  illegal.  The  courts  of  the  captors  only 
are  competent  to  decide  the  question  of  prize  or  no  prize.  American 
citizens  have  no  right  to  interfere,  and  wrest  the  neutral  vessel  from 
the  possession  of  the  belligerent. 

The  French  have  been  represented  as  pirates,  hostes  humani  generis. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  129 

But  if  France  has  waged  so  general  a  war  on  neutral  property,  has  not 
England  done  the  same?  We  find  in  their  courts,  that  when  a  benefit 
is  to  accrue  to  British  subjects,  by  such  a  decision,  they  decide  that 
France  must  be  presumed  to  respect  the  law  of  nations  and  to  decree 
the  restitution.  The  Betsey,  1  Rob.  84-5 ;  Geyer  v.  Aguilar,  7  T.  R. 
695 ;  but  when  salvage  is  to  be  given  to  British  recaptors  of  neutral 
property,  then  it  appears  that  France  has  lost  all  regard  for  the  law 
of  nations,  and  there  is  no  chance  of  escape  from  her  courts  of  ad- 
miralty. The  Two  Friends,  1  Rob.  232 ;  The  War  Onskan,  2  ibid. 
246. 

But  it  is  contended,  that  the  courts  of  France  would  have  decided 
according  to  the  decree  of  the  18th  January,  1798,  and  not  according 
to  the  law  of  nations.  This  is  not  to  be  presumed;  but  if  it  was,  how- 
ever tyrannical  the  conduct  of  a  belligerent  may  be,  no  neutral  can 
lawfully  interfere,  unless  she  herself  is  injured,  or  her  property  or 
rights  are  affected ;  and  even  then  individuals  can  not  act.  The  injury 
must  be  redressed  by  the  government,  in  the  way  of  negotiation  or 
war.  What  was  the  conduct  of  our  government  in  such  a  case?  It 
first  chose  to  negotiate,  and  then  to  prepare  for  war.  At  the  time 
the  negotiation  was  begun,  all  the  injurious  decrees  were  in  force,  full 
in  the  view  of  the  legislature,  who  authorized  certain  measures  of 
hostility :  but  no  citizen  could  go  one  step  beyond  what  was  author- 
ized. The  liability  of  the  Amelia  to  condemnation  in  a  French  court 
of  admiralty,  created  no  right  in  Captain  Talbot  to  capture  her,  even 
if  that  condemnation  was  certain. 

But  the  facts  of  this  case  do  not  warrant  such  a  conclusion.  The 
fact  stated  is,  that  "the  ship  Amelia  sailed  from  Calcutta,  in  Bengal, 
in  the  month  of  April,  1799,  loaded  with  a  cargo  of  the  product  and 
manufacture  of  that  country."  What  country?  Bengal.  But  Bengal 
is  not  stated  to  be  one  of  the  possessions  of  England.  Not  long  since, 
the  province  of  Bengal  was  in  possession  of  sovereign  princes ;  but  it 
does  not  appear  how  far  they  have  been  subdued  by  the  English. 
It  is  true,  that  the  libel  speaks  of  Calcutta  as  being  an  English  port 
in  the  East  Indies,  but  it  does  not  follow,  that  the  whole  country  of 
Bengal  has  been  subjected  to  the  British  power.  Besides,  it  is  not  the 
port  from  whence  the  vessel  sails  which  taints  the  cargo,  but  its 
quality,  as  being  the  production  of  an  English  possession.  Hence,  it 
does  not  appear,  that  the  Amelia  was  liable  to  condemnation  under 
the  decree  of  the  18th  January,  1798,  and  we  can  not  presume  that  she 


130  JUDGMENTS  OF  THE  SUPREME  COURT 

would  have  been  condemned.  The  French  captors  did  not  pretend 
she  was  Hable  under  that  decree,  but  sent  her  in  to  be  judged  accord- 
ing to  the  laws  of  war;  that  is,  according  to  the  law  of  nations  as 
applicable  to  a  state  of  war ;  and  there  being  no  fact  stated  to  the  con- 
trary, we  are  to  suppose,  that  she  would  have  been  so  judged,  and  not 
otherwise.  To  have  interfered  on  our  part  to  prevent  this  would  have 
been  a  just  cause  of  hostilities  against  us.  No  citizen  ought  to  be 
allowed  to  come  into  our  courts  to  claim  a  reward,  for  an  act  which 
hazards  the  peace  of  the  country. 

If  benefit  be  the  criterion  of  salvage,  then  the  greater  the  service 
the  greater  ought  to  be  the  salvage.  But  if  the  construction  given  by 
the  opposite  counsel  to  the  act  of  2d  March,  1799,  be  correct,  then  the 
same  salvage  is  due  for  the  recapture  of  a  clear  neutral,  as  of  a 
belligerent.  And  yet,  in  common  wars,  no  salvage  at  all  is  due  for 
the  recapture  of  a  neutral. 

Every  neutral  nation  has  a  right  to  choose  her  own  manner  of 
redress.  We  have  no  right  to  interfere,  or  to  decide  how  far  her  ves- 
sels are  liable  to  condemnation  under  French  decrees.  She  may  be 
willing  to  trust  to  the  chances  of  acquittal  or  indemnification.  We 
have  no  right  to  legislate  upon  the  property  of  a  foreign  independent 
nation,  and  to  say,  that  we  will,  whether  you  consent  or  not,  rescue 
your  vessels  from  the  French,  and  then  make  you  pay  us  salvage. 
(Vatt.,  lib.  2,  c.  1,  §  7,  p.  123.)  If  an  act,  intended  solely  for  my 
benefit,  is  advantageous  to  another,  I  am  not  entitled  to  reward.  (The 
Vryheid,  2  Rob.  23-4.)  In  order  to  ground  a  claim  of  salvage,  the 
danger  of  the  property  must  have  been,  not  hypothetical,  but  absolute; 
not  distant  and  uncertain,  but  immediate  and  imminent:  the  act  of 
saving  must  have  been  done  with  that  sole  intent,  and  must  have  been 
attended  with  labor,  loss,  expense  or  hazard  to  the  salvor.  The  Amelia 
was  taken  by  Captain  Talbot,  and  libelled  as  a  French  vessel ;  his  ob- 
ject was  not  to  save  a  neutral,  but  to  capture  a  belligerent.  Under 
such  a  mistake,  he  might  have  a  right  to  examine  her  further,  but 
the  moment  she  proved  to  be  neutral  property,  he  ought  to  have  re- 
leased her.  His  mistake  can  be  no  ground  for  a  claim  of  salvage:  it 
is  a  mere  justification  of  an  act  of  force,  and  as  such  may  save  him 
from  the  payment  of  damages  and  costs.  In  this  case,  there  was  no 
danger  to  the  property,  no  trouble  in  saving  it,  nor  any  intention  to 
benefit  the  owners.     In  Beawes'  Lex  Mer.,  vol.  1,  p.  158,  it  is  said, 


TALBOT  V.  SEEM  AN  (THE  AMELIA)  131 

that  to   support   a  claim  of  salvage,   the  vessel  must  be  in  evident 
hazard,  and  must  be  saved  by  means  used  with  that  sole  view. 

The  owner  was  a  citizen  of  an  independent  nation,  and  ought  to 
have  had  his  election.  Where  is  the  law  or  the  authority  that  allows 
salvage  to  one  belligerent  taking  from  another  the  property  of  a  neu- 
tral? By  the  state  of  the  case,  this  vessel  was  neutral  as  to  all  the 
belligerent  powers.  If  the  captor  had  applied  for  her,  she  must  have 
been  given  up,  upon  the  authority  of  the  case  of  Glass  v.  Gibbs,  3 
Dall.  6,  without  any  compensation  for  recapture.  Among  the  cases 
cited,  the  only  one  against  us  is  The  War  Onskan,  2  Rob.  246.  In 
that  case,  Sir  William  Scott  says,  that  "lately"  it  has  been  the  practice 
of  his  court  to  give  salvage  on  recapture  of  neutral  property  out  oi 
the  hands  of  the  French ;  but  that  such  is  not  the  modern  practice 
of  the  law  of  nations;  and  upon  this  plain  principle,  that  the  libera- 
tion of  a  clear  neutral  from  the  hand  of  the  enemy,  is  no  essential 
service  rendered  to  him ;  inasmuch  as  that  same  enemy  would  be  com- 
pelled by  the  tribunals  of  his  own  country,  after  he  had  carried  the 
neutral  into  port,  to  release  him,  with  costs  and  damages  for  the  ir> 
jurious  seizure  and  detention.  But  in  that  very  case,  however,  we  see 
that  he  might  shortly  change  his  course  of  decisions  on  that  subject. 
so  that,  very  probably,  had  that  case  been  decided  in  the  next  term 
it  would  have  been  decided  differently.  No  judge  has  a  right  to  de- 
cide upon  the  departure  of  other  nations  from  the  law  of  nations, 
whatever  evidence  of  such  departure  he  may  possess.  There  will  be  a 
variance  in  the  decisions  of  the  lower  courts ;  it  should,  therefore,  be 
put  upon  such  a  footing,  as  to  make  it  clear  and  plain  to  all  the  judges 
of  the  inferior  courts.  This  decision  of  Sir  William  Scott  is  a 
creature  of  his  own,  which  he  himself  promises  to  change,  when  the 
situation  of  affairs  will  allow. 

Sir  William  Scott  gives  salvage  expressly  on  the  ground  of  service 
rendered,  on  account  of  the  kind  of  hostility  which  France  exercised 
towards  neutrals.  But  in  this  case,  the  statement  of  facts  excludes 
the  idea  of  hostility  between  France  and  Hamburg.  The  law  of  na- 
tions gave  no  right  to  recapture.  The  authority  under  the  acts  of 
Congress  must  be  construed  strictly,  and  confined  to  their  express 
provisions.  Neither  the  executive,  nor  individuals,  nor  the  courts, 
have  a  right  to  alter  them. 

So  far  a?  war  is  not  authorized  by  Congress,  there  is  peace.    It  was 


132  JUDGMENTS  OF  THE  SUPREME  COURT 

not  contemplated  by  any  act  of  Congress,  that  our  vessels  should  cap- 
ture Hamburg  vessels.  The  mischief  to  be  remedied  by  the  act  of 
May  was,  that  the  small  armed  vessels  of  France  were  hovering  on  our 
coasts,  and  taking  our  vessels  almost  in  our  ports.  The  act  of  Con- 
gress has  completely  met  the  evil,  by  authorizing  the  capture  of  such 
French  vessels  as  had  taken,  or  were  found  hovering,  for  the  purpose 
of  taking  our  vessels.  This  act,  therefore,  does  not  authorize  the  cap- 
ture of  a  Hamburg  vessel.  There  is  no  law  which  authorizes  a  cap- 
ture for  two  purposes,  viz.,  to  be  condemned  as  a  French  vessel,  or  to 
be  subjected  to  salvage  as  a  neutral.  The  Amelia  was  not  navigating 
under  the  authority  or  pretended  authority  of  France:  she  was  en- 
gaged in  a  lawful  trade.  But  if  the  French  took  possession  of  her, 
under  suspicion  of  unlawful  trade,  that  gave  us  no  authority  to  take 
her  from  the  possession  of  France,  the  property,  under  the  law  of 
nations,  not  being  changed.  The  taking,  being  unlawful,  can  support 
no  claim  of  salvage. 

The  act  of  July,  1798,  authorizes  only  the  capture  of  armed  French 
vessels,  and  confines  the  cases  of  recapture  to  the  ships  or  goods  of 
citizens  or  residents  of  the  United  States.  The  capture  can  only  be 
justified  by  the  doubtful  character  of  the  vessel,  and  as  soon  as  that 
was  known  to  be  neutral,  Captain  Talbot  ought  to  have  dismissed  her ; 
the  detention  afterwards  was  unlawful,  and  will  not  justify  a  decree 
for  salvage.  This  vessel,  it  is  true,  might  have  been  used  to  distress 
our  commerce,  and  this  might  possibly  be  an  excuse  for  detaining  her, 
or  even  dismantling  her,  but  will  not  entitle  him  to  salvage. 

H  this  vessel  was  lawful  prize  to  France,  then  France  has  a  claim' 
for  indemnity ;  but  as  she  has  made  no  claim,  we  must  presume,  the 
vessel  would  have  been  restored  by  her  to  the  owners. 

The  act  of  Congress  of  March  2,  1799,  upon  which  the  counsel  for 
the  libellant  rely,  does  not  contemplate  a  case  like  the  present.  That 
is  a  permanent  law,  not  made  for  the  present  war  only,  but  intended 
to  apply  to  all  future  wars.  It  could  not,  therefore,  intend  to  give 
salvage,  on  the  recapture  of  a  neutral  from  a  belligerent,  which  is  not 
given  by  the  law  of  nations,  and  which,  it  is  allowed  on  all  hands,  is 
given,  this  war,  for  the  first  time,  only  on  account  of  the  conduct  of 
France  towards  neutrals,  and  will  cease,  when  that  conduct  shall  be 
altered.  Besides,  it  would  give  the  same  reward  for  taking  the  prop- 
erty of  a  neutral  out  of  the  hand  of  his  friend,  as  out  of  the  hand  of 
his  enemy.     The  word  "enemy,"  in  the  7th  section  of  that  act,  means 


TALBOT  V.  SEEMAN  (THE  AMELIA)  I33 

the  enemy  of  us  and  our  ally,  whose  vessel  is  recaptured  by  our  armed 
vessels,  and  not  our  enemy,  who  is  the  friend  of  our  ally. 

If,  then,  this  is  not  a  statutory  case  of  salvage,  we  must  recur  to 
the  question  of  benefit.  In  the  court  below  they  relied  wholly  on  the 
act  of  Congress :  not  a  word  was  said  respecting  the  service  rendered. 
Let  us  then  consider  the  claim  of  quantum  meruit.  To'  support  this, 
there  must  be,  1.  A  lawful  consideration;  and  2.  A  contract,  express 
or  implied. 

To  make  the  consideration  lawful,  it  must  be  permitted  by  law ; 
a  fortiori,  it  must  not  be  contrary  to  law.  It  is  not  authorized  by  our 
law,  to  take  the  property  of  a  neutral  out  of  the  possession  of  his 
friend,  and  it  is  in  direct  opposition  to  policy,  as  it  tends  to  commit 
the  peace  of  the  country.  It  is  not  alleged,  that  there  was  any  express 
contract;  and  a  contract  can  not  be  implied,  because  the  intent  with 
which  she  was  taken,  viz.,  to  be  condemned  as  a  French  armed  vessel, 
excludes  the  idea.  Nor  can  an  implied  contract  be  raised,  on  the  re- 
taining her,  because  that  was  a  state  of  duress,  which  can  not  be  made 
the  ground  of  a  reward. 

But  if  this  case  is  to  be  considered  upon  a  quantum  m^eruit,  then 
the  amount  of  salvage  must  depend  upon  the  danger  and  the  exertion. 
The  San  Bernardo,  1  Rob.  151 ;  and  The  Tzvo  Friends,  ibid.  240.  It 
IS  said,  that  in  cases  of  unauthorized  capture  or  recapture,  the  prop- 
erty goes  to  the  crown  {The  Princessa,  2  Rob.  45),  and  it  is  some- 
times referred  to  the  court  to  fix  the  reward  of  the  captors.  It  fol- 
lows, then,  that  the  property  goes  to  the  government,  and  they  alone 
can  fix  the  reward ;  but  our  code  gives  no  right  to  salvage  in  this  case, 
nor  does  the  state  of  hostilities  between  the  two  countries,  as  dis- 
closed on  the  record,  justify  it.  But  if  the  decree  and  the  notoriety  of 
the  misconduct  of  France,  are  to  be  admitted  to  prove  a  benefit  con- 
ferred, who  can  say  it  was  worth  $94,000,  the  half  of  the  gross  amount 
of  sales  of  the  ship  and  cargo?  Neither  the  service  rendered,  the 
danger  to  the  property,  nor  the  exertion  in  saving  it,  can  justify  so 
enormous  a  reward.  The  decree  of  France  might  be  only  in  terrorem, 
and  so  no  danger.  If  the  Amelia  was  not  liable  to  condemnation  in 
the  French  courts,  then  no  service  was  rendered,  and  consequently,  no 
salvage  ought  to  be  allowed. 

But  if  she  was  liable  to  condemnation,  then  the  recapture  is  a 
violation  of  the  rights  of  France.  If  France  violates  the  laws  of 
nations,  it  is  no  justification  of  a  violation  of  them  on  our  part.     An 


134  JUDGMENTS  OF  THE  SUPREME  COURT 

illegal  power  to  take,  given  by  France  to  her  cruisers,  does  not  author- 
ize us  to  retake.  In  the  case  of  Bas  v.  Tingy  (4  Dall.  37),  the  reason- 
ing of  the  court  seems  to  admit  that  the  act  of  2d  March,  1799,  will 
jiot  apply,  in  the  present  state  of  hostilities,  to  recaptures  of  the  ves- 
sels of  nations  in  amity  with  the  United  States,  unless  the  owners 
are  residents  of  the  United  States ;  because  there  could  be  no  lawful 
recapture  of  a  neutral  from  the  hand  of  a  belligerent.  Judge  Moore, 
in  delivering  his  opinion  in  that  case,  says,  "It  is,  however,  more  par- 
ticularly urged  that  the  word  'enemy'  can  not  be  applied  to  the  French ; 
because  the  section  in  which  it  is  used,  is  confined  to  such  a  state  of 
war  as  would  authorize  a  recapture  of  property  belonging  to  a  nation 
in  amity  with  the  United  States,  and  such  a  state  of  war  does  not 
exist  between  America  and  France.  A  number  of  books  have  been 
cited,  to  furnish  a  glossary  on  the  word  enemy ;  yet,  our  situation  is  so 
extraordinary,  that  I  doubt  whether  a  parallel  case  can  be  traced  in 
the  history  of  nations.  But  if  words  are  the  representatives  of  ideas, 
let  me  ask,  by  what  other  word  the  idea  of  the  relative  situation  of 
America  and  France  could  be  communicated,  than  by  that  of  hostility 
or  war?  And  how  can  the  characters  of  the  parties  engaged  in  hos- 
tility or  war,  be  otherwise  described  than  by  the  denomination  of 
'enemies.'  It  is  for  the  honor  and  dignity  of  both  nations,  therefore, 
that  they  should  be  called  enemies;  for  it  is  by  that  description  alone, 
that  either  could  justify  or  excuse  the  scene  of  bloodshed,  depredation 
and  confiscation,  which  has  unhappily  occurred;  and  surely,  Congress 
could  only  employ  the  language  of  the  act  of  June  13,  1798,  towards  a 
nation  whom  she  considered  as  an  enemy.  Nor  does  it  follow,  that 
the  act  of  March,  1799,  is  to  have  no  operation,  because  all  the  cases  in 
which  it  might  operate,  are  not  in  existence  at  the  time  of  passing  it. 
During  the  present  hostilities,  it  affects  the  case  of  recaptured  prop- 
erty belonging  to  our  own  citizens,  and  in  the  event  of  a  future  war, 
it  might  also  be  applied  to  the  case  of  recaptured  property  belonging 
to  a  nation  in  amity  with  the  United  States." 

And  in  the  same  case,  Judge  Washington  observed,  "that  hostilities 
may  subsist  between  two  nations,  more  confined  in  its  nature  and  ex- 
tent, being  limited  as  to  places,  persons  and  things ;  and  this  is  more 
properly  termed  imperfect  war ;  because  not  solemn,  and  because 
those  who  are  authorized  to  commit  hostilities,  act  under  special  au- 
thority, and  can  go  no  further  than  to  the  extent  of  their  commis- 
sion."    And  again  he  says,  "It  has  likewise  been  said,  that  the  7th 


TALBOT  V.  SEEMAN  (THE  AMELIA)  135 

section  of  the  act  of  March,  1799,  embraces  cases  which,  according 
to  preexisting  laws,  could  not  then  take  place,  because  no  author- 
ity had  been  given  to  recapture  friendly  vessels  from  the  French,  and 
this  argument  was  strongly  and  forcibly  pressed.  But  because  every 
case  provided  for  by  this  law  was  not  then  existing,  it  does  not  fol- 
low, that  the  law  should  not  operate  upon  such  as  did  exist,  and  upon 
the  rest  whenever  they  should  arise.  It  is  a  permanent  law,  em- 
bracing a  variety  of  subjects;  not  made  in  relation  to  the  present  war 
with  France  only,  but  in  relation  to  any  future  war  with  her,  or  with 
any  other  nation.  It  might,  then,  very  properly  allow  salvage  for 
recapturing  of  American  vessels  from  France,  which  had  previously 
been  authorized  by  law,  though  it  could  not  immediately  apply  to 
the  vessels  of  friends ;  and  whenever  such  a  war  should  exist  between 
the  United  States  and  France,  or  any  other  nation,  as,  according  to 
the  law  of  nations,  or  special  authority,  would  justify  the  recapture 
of  friendly  vessels,  it  might,  on  that  event,  with  similar  propriety, 
apply  to  them;  which  furnishes,  I  think,  the  true  construction  of  the 
act.  The  opinion  which  I  delivered  at  New  York,  in  Talbot  v.  Seeman, 
was,  that  although  an  American  vessel  could  not  justify  the  taking  of 
a  neutral  vessel  from  the  French,  because  neither  the  sort  of  war  that 
subsisted,  nor  the  special  commission  under  which  the  American  acted, 
authorized  the  proceeding;  yet  that  the  7th  section  of  the  act  of  1799, 
applied  to  recaptures  from  France,  as  an  enemy,  in  all  cases  authorized 
by  Congress.  And  on  both  points,  my  opinion  remains  unshaken ;  or, 
rather,  has  been  confirmed  by  the  very  able  discussion  which  the  sub- 
ject has  lately  undergone  in  this  court,  on  the  appeal  from  my  decree."^ 
Similar  sentiments  were  also  expressed  by  Judge  Chase  and  Judge 
Paterson,  in  the  same  case.  From  these  opinions,  it  seems  clearly  to 
result,  that  the  act  of  March  2,  1799,  can  not  be  the  rule  of  salvage 
in  this  case. 

On  the  part  of  the  libellant,  it  was  stated,  in  reply,  as  to  the  ad- 
missibility of  the  dispatches  from  the  American  envoys,  and  the 
French  arret  of  18th  January,  1798,  that  courts  of  admiralty  will  al- 
ways take  notice  of  such  laws  of  foreign  countries  as  go  to  modify  or 
change  the  law  of  nations,  and  are  not  bound  by  the  same  rules  of 
evidence,  as  courts  of  common  law.     1  Dall.  463;  Lofift,  631;  Doug. 


1  This  case  of   Talbot  v.  Seeman  was  argued  once  before,   in  this   court,  at 
Philadelphia.     [Ante,  p.  102.] 


136         JUDGMENTS  OF  THE  SUPREME  COURT 

619,  622,  649,  650,  554.  The  opposite  counsel  have  cited  and  reUed 
on  Robinson's  Reports,  to  show  what  was  the  ancient  law  of  France, 
and  surely,  we  have  as  good  a  right  to  cite  the  same  book,  to  show 
what  is  the  present  law  of  France.  In  The  Maria,  1  Rob.  288,  this 
arret  of  France  is  cited  and  argued  upon  by  the  judge. 

The  cases  cited  by  the  opposite  counsel  to  show  that  foreign  laws 
must  be  proved  as  facts,  are  all  cases  at  common  law,  or  relate  to  the 
mere  municipal  laws  of  a  foreign  country ;  and  are  not  such  as  go  to 
modify  or  explain  the  law  of  nations,  as  that  country  has  adopted  it. 
The  case  in  P.  Williams  refers  to  a  municipal  law,  which  had  no  con- 
nection with  the  law  of  nations.  The  same  observation  applies  to  the 
cases  from  6  Mod.,  and  2  Salk.  No  case  can  be  produced,  where  a 
law  of  a  foreign  country,  authenticated  as  this  is  by  an  act  of  the 
legislature  of  our  country,  has  been  refused  to  be  considered  by  a 
court. 

As  to  the  objection,  that  the  cargo  does  not  appear  to  be  the  pro- 
duction of  England,  or  her  possessions,  because  there  is  no  evidence 
that  the  whole  of  the  province  of  Bengal  has  been  subjected  to  the  do- 
minion of  England ;  it  may  be  sufficient  to  observe,  that  the  libel  and 
answer  admit  Calcutta  to  be  an  English  port,  and  the  case  stated  says, 
the  vessel  sailed  from  Calcutta,  in  Bengal,  loaded  with  a  cargo  of  the 
product  and  manufacture  of  that  country.  It  being  admitted,  that  Cal- 
cutta is  an  English  port,  and  that  the  cargo  was  the  production  of  that 
country,  it  follows,  unless  the  contrary  is  clearly  shown  in  evidence, 
that  the  cargo  was  the  product  of  an  English  possession. 

It  is  said,  that  there  is  no  evidence  that  France  carried  her  unjust 
decrees  into  execution,  and  that  they  might  only  be  enacted  in  ter- 
rorem.  But  the  fact  is  notorious  to  all  the  world:  Congress  have  ex- 
pressly declared  it  in  the  preambles  of  their  acts :  the  whole  system 
of  hostility  is  founded  upon  it,  and  can  be  justified  on  no  other  ground. 
They  have  further  declared  it,  by  ordering  the  dispatches  to  be  pub- 
lished and  distributed  among  the  citizens  of  the  United  States,  for 
their  information.  It  would  be  strange,  if  this  court,  sitting  here  as  a 
court  of  the  law  of  nations,  to  try  a  cause  in  which  all  the  world  are 
parties,  should  be  the  only  persons  in  the  world  ignorant  of  the  fact. 

The  general  principle  is  admitted,  that  salvage  is  not  due  for  the 
recapture  of  a  neutral  from  a  belligerent,  and  for  this  reason,  that  by 
the  law  of  nations,  the  neutral  would  be  restored  by  the  captor,  with 
damages  and  costs.    But  cessante  ratione,  cessat  lex.    And  it  follows. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  137 

by  powerful  inference,  that  if  the  captor  would  not  have  restored  the 
neutral,  with  damages  and  costs,  salvage  ought  to  be  allowed.  To 
bring  the  Amelia  within  this  inference,  it  is  only  necessary  to  show, 
that  she  would  not  have  been  restored  with  damages  and  costs.  If 
the  court  should  take  into  consideration  the  arret  of  the  18th  of  Janu- 
ary, 1798,  and  the  fact,  that  the  cargo  was  the  production  of  an  En- 
glish possession,  there  is  no  doubt  but,  instead  of  being  restored  with 
damages  and  costs,  she  would  have  been  condemned  and  cotally  lost 
to  her  owners.  Is  no  salvage  due,  for  so  certain  and  so  signal  a 
benefit  ? 

It  is  said,  that  unless  salvage  is  expressly  given  by  the  act  of  Con- 
gress, it  can  only  be  claimed  upon  a  contract,  either  express  or  im- 
plied. This  is  not  the  case.  The  claim  of  salvage  upon  recapture 
never  is  supposed  to  arise  ex  contractu.  It  is  given  as  a  reward  for 
the  benefit  received,  and  where  there  is  no  express  statute  upon  the 
subject,  the  amount  is  to  be  regulated,  not  by  the  labor  or  hazard  of 
the  recaptor,  nor  by  his  intention  to  concur  a  benefit,  but  by  the  sup- 
posed amount  which  the  owner  would  have  been  willing  to  give  for 
the  rescue  of  his  property.  Woodeson,  423.  In  The  Two  Friends, 
1  Rob.  234-5,  the  rule  of  salvage  on  rescue  is  said  to  be  quantum 
meruit.  And  in  the  same  case,  p.  232,  Sir  W.  Scott  says,  "it  has  been 
slightly  questioned  in  the  act  of  court  (which  contains  the  exposition 
of  facts  given  by  both  parties),  whether  there  was  such  a  state  of 
hostilities  between  America  and  France  as  to  raise  a  title  of  salvage 
for  American  goods  retaken  from  the  French.  But  this  point  has  not 
been  pursued  in  argument ;  and  indeed,  I  should  wonder  if  it  had,  after 
the  determinations  of  this  court,  which  have,  in  various  instances, 
decreed  salvage  in  similar  cases.  It  is  not  for  me  to  say,  whether 
America  is  at  war  with  France,  or  not;  but  the  conduct  of  France 
towards  America  has  been  such  de  facto,  as  to  induce  American 
owners  to  acknowledge  the  services  by  which  they  have  recovered 
their  ships  and  cargoes  out  of  the  hands  of  French  cruisers,  by  force 
of  arms." 

In  the  case  of  Bas  v.  Tingy,  the  question  was  not  argued,  whether 
salvage  could  be  claimed  upon  the  recapture  of  a  neutral,  on  the 
ground  of  benefit  rendered ;  and,  therefore,  the  opinion  of  the  court 
in  that  case  does  not  militate  with  our  claim. 

August  11,  1801.  Marshall,  C.  J.,  delivered  the  opinion  of  the 
court:  This  is  a  writ  of  error  to  a  decree  of  the  circuit  court  for  the 


138  JUDGMENTS  OF  THE  SUPREME  COURT 

district  of  New  York,  by  which  the  decree  of  the  district  court  of 
that  State,  restoring  the  ship  Amelia  to  her  owner  on  the  payment  of 
one-half  for  salvage,  was  reversed,  and  a  decree  rendered,  directing 
the  restoration  of  the  vessel  without  salvage. 

The  facts  agreed  by  the  parties,  and  the  pleadings  in  the  cause, 
present  the  following  case:  The  ship  Amelia  sailed  from  Calcutta,  in 
Bengal,  in  April,  1799,  loaded  with  a  cargo  of  the  product  and  manu- 
facture of  that  country,  and  was  bound  to  Hamburg.  On  the  6th 
September,  she  was  captured  by  the  French  national  corvette  La  Dili- 
gente,  commanded  by  L.  J.  Dubois,  who  took  out  the  master,  part 
of  the  crew  and  most  of  the  papers  of  the  Amelia,  and  putting  a  prize- 
master  and  French  sailors  on  board  her,  ordered  her  to  St.  Domingo, 
to  be  judged  according  to  the  laws  of  war.  On  the  15th  of  September, 
she  was  recaptured  by  Captain  Talbot,  commander  of  the  Constitution, 
who  ordered  her  into  New  York  for  adjudication.  At  the  time  of  the 
recapture,  the  Amelia  had  eight  iron  cannon,  and  eight  wooden  guns, 
with  which  she  left  Calcutta.  From  the  ship's  papers,  and  other  tes- 
timony, it  appeared,  that  she  was  the  property  of  Chapeau  Rouge,  a 
citizen  and  merchant  of  Hamburg;  and  it  was  conceded  by  the  coun- 
sel below,  that  France  and  Hamburg  were  not  in  a  state  of  hostility 
with  each  other,  and  that  Hamburg  was  to  be  considered  as  neutral 
between  the  present  belligerent  powers. 

The  district  court  of  New  York,  before  whom  the  cause  first  came, 
decreed  one-half  of  the  gross  amount  of  the  ship  and  cargo  as  sal- 
vage to  the  recaptors.  The  circuit  court  of  New  York  reversed  this 
decree,  from  which  reversal,  the  recaptors  appealed  to  this  court. 
The  Amelia  was  libelled  as  a  French  vessel,  and  the  libellant  prays 
that  she  may  be  condemned  as  prize;  or,  if  restored  to  any  person 
entitled  to  her  as  the  former  owner,  that  such  restoration  should  be 
made  on  paying  salvage.  The  claim  and  answer  of  Hans  Frederic 
Seeman  discloses  the  neutral  character  of  the  vessel,  and  claims  her 
on  behalf  of  the  owners. 

The  questions  growing  out  of  the  facts,  and  to  be  decided  by  the 
court,  are :  Is  Captain  Talbot,  the  plaintiff  in  error,  entitled  to  any,  and 
if  to  any,  to  what  salvage,  in  the  case  which  has  been  stated? 

Salvage  is  a  compensation  for  actual  service  rendered  to  the  prop- 
erty charged  with  it.  It  is  demandable  of  right  for  vessels  saved  from 
pirates,  or  from  the  enemy.  In  order,  however,  to  support  the  de- 
mand, two  circumstances  must  concur.  1.  The  taking  must  be  lawful. 
2.  There  must  be  a  meritorious  service  rendered  to  the  recaptured. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  139 

1.  The  taking  must  be  lawful;  for  no  claim  can  be  maintained  in  a 
court  of  justice,  founded  on  an  act  in  itself  tortious.  On  a  recapture, 
therefore,  made  by  a  neutral  power,  no  claim  for  salvage  can  arise, 
because  the  act  of  retaking  is  a  hostile  act,  not  justified  by  the  situa- 
tion of  the  nation  to  which  the  vessel  making  the  recapture  belongs-, 
in  relation  to  that  from  the  possession  of  which  such  recaptured  ves- 
sel was  taken.  The  degree  of  service  rendered  the  rescued  vessel  is 
precisely  the  same  as  if  it  had  been  rendered  by  a  belligerent;  yet  the 
rights  accruing  to  the  recaptor  are  not  the  same,  because  no  right 
can  accrue  from  an  act  in  itself  unlawful. 

In  order,  then,  to  decide  on  the  right  of  Captain  Talbot,  it  becomes 
necessary  to  examine  the  relative  situation  of  the  United  States  and 
France  at  the  date  of  the  recapture.  The  whole  powers  of  war  being, 
by  the  Constitution  of  the  United  States,  vested  in  Congress,  the  acts 
of  that  body  can  alone  be  resorted  to  as  our  guides  in  this  inquiry. 
It  is  not  denied,  nor,  in  the  course  of  the  argument,  has  it  been  de- 
nied, that  Congress  may  authorize  general  hostilities,  in  which  case 
the  general  laws  of  war  apply  to  our  situation ;  or  partial  hostilities, 
in  which  case  the  laws  of  war,  so  far  as  they  actually  apply  to  our 
situation,  must  be  noticed.  To  determine  the  real  situation  of  America 
in  regard  to  France,  the  acts  of  Congress  are  to  be  inspected. 

The  first  act  on  this  subject  passed  on  the  28th  of  May,  1798,  and 
is  entitled  "An  act  more  effectually  to  protect  the  commerce  and  coasts 
of  the  United  States."  This  act  authorizes  any  armed  vessel  of  the 
United  States  to  capture  any  armed  vessel  sailing  under  the  authority, 
or  pretense  of  authority,  of  the  Republic  of  France,  which  shall  have 
committed  depredations  on  vessels  belonging  to  the  citizens  of  the 
United  States,  or  which  shall  be  found  hovering  on  the  coasts,  for  the 
purpose  of  committing  such  depredations.  It  also  authorizes  the  re- 
capture of  vessels  belonging  to  the  citizens  of  the  United  States. 

On  the  25th  of  June,  1798,  an  act  was  passed  "to  authorize  the  de- 
fense of  the  merchant  vessels  of  the  United  States  against  French 
depredations."  This  act  empowers  merchant  vessels,  owned  wholly 
by  citizens  of  the  United  States,  to  defend  themselves  against  any 
attack  which  may  be  made  on  them  by  the  commander  or  crew  of  any 
armed  vessel  sailing  under  French  colors,  or  acting,  or  pretending  to 
act,  by  or  under  the  authority  of  the  French  Republic;  and  to  capture 
any  such  vessel.  This  act  also  authorizes  the  recapture  of  merchant 
vessels  belonging  to  the  citizens  of  the  United   States.     By  the  2d 


140         JUDGMENTS  OF  THE  SUPREME  COURT 

section,  such  armed  vessel  is  to  be  brought  in  and  condemned  for 
the  use  of  the  owners  and  captors.  By  the  same  section,  recaptured 
vessels  belonging  to  the  citizens  of  the  United  States,  are  to  be  re- 
stored, they  paying  for  salvage  not  less  than  one-eighth  nor  more  than 
one-half  of  the  true  value  of  such  vessel  and  cargo. 

On  the  28th  of  June,  an  act  passed  "in  addition  to  the  act  more 
effectually  to  protect  the  commerce  and  coasts  of  the  United  States." 
This  authorizes  the  condemnation  of  vessels  brought  in  under  the  first 
act,  with  their  cargoes,  excepting  only  from  such  condemnation,  the 
goods  of  any  citizen  or  person  resident  within  the  United  States,  which 
shall  have  been  before  taken  by  the  crew  of  such  captured  vessel.  The 
second  section  provides  that  whenever  any  vessel  or  goods,  the  prop- 
erty of  any  citizen  of  the  United  States,  or  person  resident  therein, 
shall  be  recaptured,  the  same  shall  be  restored,  he  paying  for  salvage 
one-eighth  part  of  the  value,  free  from  all  deductions. 

On  the  9th  of  July,  another  law  was  enacted,  "further  to  protect 
the  commerce  of  the  United  States."  This  act  authorizes  the  public 
armed  vessels  of  the  United  States  to  take  any  armed  French  vessel, 
found  on  the  high  seas.  It  also  directs  such  armed  vessel,  with  her 
apparel,  guns,  etc.,  and  the  goods  and  effects  found  on  board,  being 
French  property,  to  be  condemned  as  forfeited.  The  same  power 
of  capture  is  extended  to  private  armed  vessels.  The  sixth  section 
provides,  that  the  vessel  or  goods  of  any  citizen  of  the  United  States, 
or  person  residing  therein,  shall  be  restored,  on  paying  for  salvage  not 
less  than  one-eighth,  nor  more  than  one-half,  of  the  value  of  such 
recapture,  without  any  deduction. 

The  seventh  section  of  the  act  for  the  government  of  the  navy, 
passed  the  2d  of  March,  1799,  enacts,  "That  for  the  ships  or  goods 
belonging  to  the  citizens  of  the  United  States,  or  to  the  citizens  or 
subjects  of  any  nation  in  amity  with  the  United  States,  if  retaken 
within  twenty-four  hours,  the  owners  are  to  allow  one-eighth  part  of 
the  whole  value  for  salvage,"  and  if  they  have  remained  above  ninety- 
six  hours  in  possession  of  the  enerhy,  one-half  is  to  be  allowed. 

On  the  3d  of  March,  1800,  Congress  passed  "an  act  providing  for 
salvage  in  cases  of  recapture."  This  law  regulates  the  salvage  to  be 
paid  "when  any  vessels  or  goods,  which  shall  be  taken  as  prize  as 
aforesaid,  shall  appear  to  have  before  belonged  to  any  person  or  per- 
sons permanently  resident  within  the  territory,  and  under  the  pro- 
tection, of  any  foreign  prince,  government  or  state,  in  amity  with  the 


TALBOT  V.  SEEMAN  (THE  AMELIA)  141 

United  States,  and  to  have  been  taken  by  an  enemy  of  the  United 
States,  or  by  authority,  or  pretense  of  authority,  from  any  prince, 
government  or  state,  against  which  the  United  States  have  authorized, 
or  shall  authorize,  defense  or  reprisals." 

These  are  the  laws  of  the  United  States  which  define  their  situation 
in  regard  to  France,  and  which  regulate  salvage  to  accrue  on  recap- 
tures made  in  consequence  of  that  situation. 

A  neutral  armed  vessel  which  has  been  captured,  and  which  is  com- 
manded and  manned  by  Frenchmen,  whether  found  cruising  on  the 
high  seas,  or  sailing  directly  for  a  French  port,  does  not  come  within 
the  description  of  those  which  the  law  authorizes  an  American  ship 
of  war  to  capture,  unless  she  be  considered  quoad  hoc  as  a  French 
vessel. 

Very  little  doubt  can  be  entertained,  but  that  a  vessel  thus  circum- 
stanced, encountering  an  American  unarmed  merchantman,  or  one 
which  should  be  armed,  but  of  inferior  force,  would  as  readily  cap- 
ture such  merchantman,  as  if  she  had  sailed  immediately  from  the 
ports  of  France.  One  direct  and  declared  object  of  the  war,  then, 
which  was  the  protection  of  the  American  commerce,  would  as  cer- 
tainly require  the  capture  of  such  a  vessel,  as  of  others  more  deter- 
minately  specified.  But  the  rights  of  a  neutral  vessel,  which  the  Gov- 
ernment of  the  United  States  can  not  be  considered  as  having  disre- 
garded, here  intervene ;  and  the  vessel  certainly  is  not,  correctly  speak- 
ing, a  French  vessel. 

If  the  Amelia  was  not,  on  the  15th  of  September,  1799,  a  French 
vessel,  within  the  description  of  the  act  of  Congress,  could  her  cap- 
ture be  lawful?  It  is,  I  believe,  a  universal  principle,  which  applies 
to  those  engaged  in  a  partial,  as  well  as  those  engaged  in  a  general 
war,  that  where  there  is  probable  cause  to  believe  the  vessel  met  with 
at  sea,  is  in  the  condition  of  one  liable  to  capture,  it  is  lawful  to  take 
her,  and  subject  her  to  the  examination  and  adjudication  of  the  courts. 
The  Amelia  was  an  armed  vessel,  commanded  and  manned  by  French- 
men. It  does  not  appear,  that  there  was  evidence  on  board  to  ascer- 
tain her  character.  It  is  not  then  to  be  questioned,  but  that  there  was 
probable  cause  to  bring  her  in  for  adjudication.  The  recapture,  then, 
was  lawful. 

But  it  has  been  insisted,  that  this  recapture  was  only  lawful  in  con- 
sequence of  the  doubtful  character  of  the  Amelia,  and  that  no  right 
of  salvage  can  accrue  from  an  act  which  was  founded  in  mistake,  and 


142  JUDGMENTS  OF  THE  SUPREME  COURT 

which  is  only  justified  by  the  difficulty  of  avoiding  error,  arising  from 
the  doubtful  circumstances  of  the  case.  The  opinion  of  the  court  is, 
that  had  the  character  of  the  Amelia  been  completely  ascertained  by 
Captain  Talbot,  yet,  as  she  was  an  armed  vessel,  under  French  au- 
thority, and  in  a  condition  to  annoy  the  American  commerce,  it  was 
his  duty  to  render  her  incapable  of  mischief.  To  have  taken  out  the 
arms,  or  the  crew,  was  as  little  authorized  by  the  construction  of  the 
act  of  Congress  contended  for  by  the  claimants,  as  to  have  taken  pos- 
session of  the  vessel  herself. 

It  has,  I  believe,  been  practised  in  the  course  of  the  present  war, 
and  if  not,  is  certainly  very  practicable,  to  man  a  prize  and  cruise 
with  her  for  a  considerable  time,  without  sending  her  in  for  condem- 
nation. The  property  of  such  vessel  would  not,  strictly  speaking,  be 
changed,  so  as  to  become  a  French  vessel,  and  yet  it  would  probably 
have  been  a  great  departure  from  the  real  intent  of  Congress,  to  have 
permitted  such  vessel  to  cruise  unmolested.  An  armed  ship,  under 
these  circumstances,  might  have  attacked  one  of  the  public  vessels  of 
the  United  States.  The  acts  which  have  been  recited  expressly  au- 
thorize the  capture  of  such  vessel,  so  commencing  hostilities,  by  a  pri- 
vate armed  ship,  but  not  by  one  belonging  to  the  public.  To  suppose, 
that  a  capture  would  in  one  case  be  lawful,  and  in  the  other  unlawful; 
or  to  suppose,  that  even  in  the  limited  state  of  hostilities  in  which  we 
were  placed  two  vessels  armed  and  manned  by  the  enemy,  and  equally 
cruising  on  American  commerce,  might  the  one  be  lawfully  captured, 
while  the  other,  though  an  actual  assailant,  could  not;  or  if  captured, 
that  the  act  could  only  be  justified  from  the  probable  cause  of  capture 
furnished  by  appearances,  would  be  to  attribute  a  capriciousness  to  our 
legislation  on  the  subject  of  war,  which  can  only  be  proper  when  in- 
evitable. 

There  must,  then,  be  incidents  growing  out  of  those  acts  of  hostility 
specifically  authorized,  which  a  fair  construction  of  the  acts  will  au- 
thorize likewise.  This  was  obviously  the  sense  of  Congress.  If  by 
the  laws  of  Congress  on  this  subject,  that  body  shall  appear  to  have 
legislated  upon  a  perfect  conviction  that  the  state  of  war  in  which  this 
country  was  placed,  was  such  as  to  authorize  recaptures,  generally, 
from  the  enemy;  if  one  part  of  the  system  shall  be  manifestly  founded 
on  this  construction  of  the  other  part,  it  would  have  considerable 
weight  in  rendering  certain,  what  might  before  have  been  doubtful. 

Upon  a  critical  investigation  of  the  acts  of  Congress,  it  will  appear, 


TALBOT  V.  SEEMAN  (THE  AMELIA)  143 

that  the  right  of  recapture  is  expressly  given,  in  no  single  instance, 
but  that  of  a  vessel  or  goods  belonging  to  a  citizen  of  the  United 
States.  It  will  also  appear,  that  the  quantum  of  salvage  is  regulated, 
as  if  the  right  to  it  existed  previous  to  the  regulation. 

Although  no  right  of  recapture  is  given,  in  terms,  for  the  vessels 
and  goods  belonging  to  persons  residing  within  the  United  States,  not 
being  citizens,  yet  an  act,  passed  so  early  as  the  28th  of  June,  1798, 
declares,  that  vessels  and  goods  of  this  description,  when  recaptured, 
shall  be  restored  on  paying  salvage;  thereby  plainly  indicating,  that 
such  recapture  was  sufficiently  warranted  by  law,  to  be  the  founda- 
tion of  a  claim  for  salvage.  If  the  recapture  of  vessels  of  one  de- 
scription, not  expressly  authorized  by  the  very  terms  of  the  act  of 
Congress,  be  yet  a  rightful  act,  recognized  by  Congress  as  the  founda- 
tion for  a  claim  to  salvage,  which  claim  Congress  proceeds  to  regulate, 
then  it  would  seem,  that  other  recaptures  from  the  same  enemy  are 
equally  rightful ;  and  where  the  claim  they  afford  for  salvage  has  not 
been  regulated  by  Congress,  such  claim  must  be  determined  by  the 
principles  of  general  law. 

In  this  situation  remained  the  recaptured  vessels  of  any  other 
power,  also  at  war  with  France,  until  the  act  of  the  2d  of  March,  1799, 
which  regulates  the  salvage  demandable  from  them.  Neither  by  that 
act,  nor  by  any  previous  act,  was  a  power  given,  in  terms,  to  recapture 
such  vessels.  But  their  recapture  was  an  incident  which  unavoidably 
grew  out  of  the  state  of  the  war.  On  the  capture  of  a  French  vessel, 
having  with  her  as  a  prize  the  vessel  of  such  a  power,  the  prize  was 
inevitably  recaptured.  On  the  idea,  that  the  recapture  was  lawful, 
and  that  it  was  a  foundation  on  which  the  right  to  salvage  could 
stand,  the  legislature,  in  March,  1799,  declared  what  the  amount  of 
that  salvage  should  be.  The  expression  of  this  act  is  by  no  means  ex- 
plicit. If  it  extends  to  neutrals,  then  it  governs  in  this  case;  if  other- 
wise, the  law  respecting  them  continued  still  longer,  on  the  same 
ground  with  the  law  respecting  a  belligerent,  prior  to  the  passage  of 
the  act  of  the  2d  of  March,  1799.  Thus  it  continued  until  the  3d  of 
March,  1800,  when  the  legislature  regulated  the  salvage  to  be  paid 
by  neutrals,  recaptured  from  a  power  against  which  the  United  States 
have  authorized  defense  or  reprisals. 

This  act  having  passed  subsequently  to  the  recapture  of  the  Amelic, 
can  certainly  not  affect  that  case  as  to  the  quantity  of  salvage,  or  give 
a  right  to  salvage  which  did  not  exist  before.    But  it  manifests,  in  like 


144  JUDGMENTS  OF  THE  SUPREME  COURT 

manner  with  the  laws  already  commented  on,  the  system  which  Con- 
gress considered  itself  as  having  established.  This  act  was  passed  at 
a  time  when  no  additional  hostility  against  France  could  have  been 
contemplated.  It  was  only  designed  to  keep  up  the  defensive  system 
which  had  before  been  formed,  and  which  it  was  deemed  necessary 
to  continue,  until  the  negotiation  then  pending  should  have  a  pacific 
termination.  Accordingly,  there  is  no  expression  in  the  act  extending 
the  power  of  recapture,  or  giving  it,  in  the  case  of  neutrals.  This 
power  is  supposed  to  exist,  as  an  incident  growing  out  of  the  state  of 
war,  and  the  right  to  salvage  produced  by  that  power  is  regulated  in 
the  act. 

In  case  of  a  recapture,  subsequently  to  the  act,  no  doubt  could  be 
entertained,  but  that  salvage,  according  to  its  terms,  would  be  de- 
mandable.  Yet  there  is  not  a  syllable  in  it  which  would  warrant  an 
idea,  that  the  right  of  recapture  was  extended  by  it,  or  did  not  exist 
before.  It  must  then  have  existed,  from  the  passage  of  the  laws, 
which  commenced  a  general  resistance  to  the  aggressions  we  had  so 
long  experienced  and  submitted  to. 

It  is  not  unworthy  of  notice,  that  the  first  regulation  of  the  right 
of  salvage  in  the  case  of  a  recapture,  not  expressly  enumerated  among 
the  specified  acts  of  hostility  warranted  by  the  law,  is  to  be  found  in 
one  of  those  acts  which  constitute  a  part  of  the  very  system  of  de- 
fense determined  on  by  Congress,  and  is  the  first  which  subjects  to 
condemnation  the  prizes  made  by  our  public  ships  of  war. 

It  has  not  escaped  the  consideration  of  the  court,  that  a  legislative 
act,  founded  on  a  mistaken  opinion  of  what  was  law,  does  not  change 
the  actual  state  of  the  law  as  to  preexisting  cases.  This  principle  is 
not  shaken  by  the  opinion  now  given.  The  court  goes  no  further  than 
to  use  the  provisions  in  one  of  several  acts  forming  a  general  system, 
as  explanatory  of  other  parts  of  the  same  system ;  and  this  appears  to 
be  in  obedience  to  the  best  established  rules  of  exposition,  and  to  be 
necessary  to  a  sound  construction  of  the  law. 

An  objection  was  made  to  the  claim  of  salvage,  by  one  of  the  coun- 
sel for  the  defendant  in  error,  unconnected  with  the  acts  of  Congress, 
and  which  it  is  proper  here  to  notice.  He  states,  that  to  give  title  to 
salvage,  the  means  used  must  not  only  have  produced  the  benefit,  but 
m.ust  have  been  used  with  that  sole  view.  For  this  he  cites  Beawes' 
Lex  Mer.  158.  The  principle  is  applied  by  Beawes  to  the  single  case 
of  a  vessel  saved  at  sea,  by  throwing  overboard  a  part  of  her  cargo. 


TALBOT  V.  SEEMAN  (THE  AMELIA)  145 

In  that  case,  the  principle  is  unquestionably  correct,  and  in  the  case  of 
a  recapture,  it  is  as  unquestionably  incorrect.  The  recaptor  is  seldom 
actuated  by  the  sole  view  of  saving  the  vessel,  and  in  no  case  of  the 
sort,  has  the  inquiry  ever  been  made.  It  is,  then,  the  opinion  of  the 
court,  on  a  consideration  of  the  acts  of  Congress,  and  of  the  circum- 
stances of  the  case,  that  the  recapture  of  the  Amelia  was  lawful ;  and 
that,  if  the  claim  to  salvage  be  in  other  respects  well  founded,  there 
is  nothing  to  defeat  it  in  the  character  of  the  original  taking. 

2.  It  becomes  then  necessar\'  to  inquire,  whether  there  has  been  such 
a  meritorious  service  rendered  to  the  recaptured,  as  entitles  the  recap- 
tor  to  salvage? 

The  Amelia  was  a  neutral  ship,  captured  by  a  French  cruiser,  and 
recaptured  while  on  her  way  to  a  French  port,  to  be  adjudged  accord- 
ing to  the  laws  of  war.  It  is  stated  to  be  the  settled  doctrine  of  the 
law  of  nations,  that  a  neutral  vessel,  captured  by  a  belligerent,  is  to  be 
discharged  without  paying  salvage:  and  for  this  several  authorities 
have  been  quoted,  and  many  more  might  certainly  be  cited.  That  such 
has  been  a  general  rule,  is  not  to  be  questioned.  As  little  is  it  to  be 
questioned,  that  this  rule  is  founded  exclusively  on  the  supposed 
safety  of  the  neutral.  It  is  expressly  stated  in  the  case  of  The  War 
Onskan,  cited  from  Robinson's  Reports,  to  be  founded  on  this  plain 
principle,  "that  the  liberation  of  a  clear  neutral  from  the  hand  of  the 
enemy,  is  no  essential  service  rendered  to  him,  inasmuch  as  that  the 
same  enemy  would  be  compelled,  by  the  tribunals  of  his  own  country, 
after  he  had  carried  the  neutral  into  port,  to  release  him,  with  costs 
and  damages  for  the  injurious  seizure  and  detention."  It  is  not  un- 
frequent,  to  consider  and  speak  of  a  regular  practice  under  a  rule,  as 
itself  forming  a  mle.  A  regular  course  of  decisions  on  the  text  of  the 
law,  constitutes  a  rule  of  construction,  by  which  that  text  is  to  be 
applied  to  all  similar  cases :  but  alter  the  text,  and  the  rule  no  longer 
governs.  So,  in  the  case  of  salvage.  The  general  principle  is,  that 
salvage  is  only  payable,  where  a  meritorious  service  has  been  rendered. 
In  the  application  of  this  principle,  it  has  been  decided,  that  neutrals 
carried  in  by  a  belligerent  for  examination,  being  in  no  danger,  receive 
no  benefit  from  recapture ;  and  ought  not,  therefore,  to  pay  salvage. 

The  principle  is,  that  without  benefit,  salvage  is  not  payable:  and  it 
is  merely  a  consequence  from  this  principle,  which  exempts  recaptured 
neutrals  from  its  payment.  But  let  a  nation  change  its  laws  and  its 
practice  on  this  subject;  let  its  legislation  be  such  as  to  subject  to 


146  JUDGMENTS  OF  THE  SUPREME  COURT 

condemnation  all  neutrals  captured  by  its  cruisers,  and  who  will  say, 
that  no  benefit  is  conferred  by  a  recapture?  In  such  a  course  of 
things,  the  state  of  the  neutral  is  completely  changed.  So  far  from 
being  safe,  he  is  in  as  much  danger  of  condemnation,  as  if  captured 
by  his  own  declared  enemy.  A  series  of  decisions,  then,  and  of  rules 
founded  on  his  supposed  safety,  no  longer  apply:  only  those  rules  are 
applicable,  which  regulate  a  situation  of  actual  danger.  This  is  not, 
as  it  has  been  termed,  a  change  of  principle;  but  a  preservation  of 
principle,  by  a  practical  application  of  it,  according  to  the  original 
substantial  good  sense  of  the  rule. 

It  becomes,  then,  necessary  to  inquire,  whether  the  laws  of  France 
were  such  as  to  have  rendered  the  condemnation  of  the  Amelia  so 
extremely  probable,  as  to  create  a  case  of  such  real  danger,  that  hct 
recapture  by  Captain  Talbot  must  be  considered  as  a  meritorious  serv- 
ice entitling  him  to  salvage.  To  prove  this,  the  counsel  for  the  plain- 
tiff in  error  has  offered  several  decrees  of  the  French  Government, 
and  especially,  one  of  the  18th  of  January,  1798. 

Objections  have  been  made  to  the  reading  of  these  decrees,  as  being 
the  laws  of  a  foreign  nation,  and  therefore,  facts,  which,  like  other 
facts,  ought  to  have  been  proved,  and  to  have  formed  a  part  of  the 
case  stated  for  the  consideration  of  the  court.  That  the  laws  of  a 
foreign  nation,  designed  only  for  the  direction  of  its  own  affairs,  are 
not  to  be  noticed  by  the  courts  of  other  countries,  unless  proved  as 
facts,  and  that  this  court,  with  respect  to  facts,  is  limited  to  the  state- 
ment made  in  the  court  below,  can  not  be  questioned.  The  real  and 
only  question  is,  whether  the  public  laws  of  a  foreign  nation,  on  a 
subject  of  common  concern  to  all  nations,  promulgated  by  the  gov- 
erning powers  of  a  country,  can  be  noticed  as  law,  by  a  court  of  ad- 
miralty of  that  country,  or  must  be  still  further  proved  as  a  fact. 

The  negative  of  this  proposition  has  not  been  maintained  in  any 
of  the  authorities  which  have  been  adduced.  On  the  contrary,  several 
have  been  quoted  (and  such  seems  to  have  been  the  general  practice) 
in  which  the  marine  ordinances  of  a  foreign  nation  are  read  as  law, 
without  being  proved  as  facts.  It  has  been  said,  that  this  is  done  by 
consent :  that  it  is  a  matter  of  general  convenience,  not  to  put  parties 
to  the  trouble  and  expense  of  proving  permanent  and  well-known  laws 
which  it  is  in  their  power  to  prove;  and  this  opinion  is  countenanced 
by  the  case  cited  from  Douglas.  If  it  be  correct,  yet,  this  decree 
having  been  promulgated  in  the  United  States  as  the  law  of  France, 


TALBOT  V.  SEEMAN  (THE  AMELIA)  147 

by  the  joint  act  of  that  department  which  is  entrusted  with  foreign 
intercourse,  and  of  that  which  is  invested  with  the  powers  of  war, 
seems  to  assume  a  character  of  notoriety  which  renders  it  admissible 
in  our  courts.  It  is,  therefore,  the  opinion  of  the  court,  that  the 
decree  should  be  read  as  an  authenticated  copy  of  a  public  law  of 
France,  interesting  to  all  nations. 

The  decree  ordains,  that  "the  character  of  vessels,  relative  to  their 
quality  of  neuter  or  enemy,  shall  be  determined  by  their  cargo ;  in 
consequence,  every  vessel  found  at  sea,  loaded,  in  whole  or  in  part, 
with  merchandise,  the  production  of  England  or  her  possessions,  shall 
be  declared  good  prize,  whoever  the  owner  of  these  goods  or  mer- 
chandise may  be."  This  decree  subjects  to  condemnation  in  the  courts 
of  France,  a  neutral  vessel,  laden,  in  whole  or  in  part,  with  arti- 
cles the  growth  of  England  or  any  of  its  possessions.  A  neutral 
thus  circumstanced  can  not  be  considered  as  in  a  state  of  safety :  his 
recaptor  can  not  be  said  to  have  rendered  him  no  service.  It  can  not 
reasonably  be  contended,  that  he  would  have  been  discharged  in  the 
ports  of  the  belligerent,  with  costs  and  damages. 

Let  us,  then,  inquire,  whether  this  was  the  situation  of  the  Amelia. 
The  first  fact  states  her  to  have  sailed  from  Calcutta,  in  Bengal,  in 
April,  1799,  laden  with  a  cargo  of  the  product  and  manufacture  of 
that  country.  Here  it  is  contended,  that  the  whole  of  Bengal  may 
possibly  not  be  in  the  possession  of  the  English,  and,  therefore,  it 
does  not  appear  that  the  cargo  was  within  the  description  of  the  de- 
cree. But  to  this,  it  has  been  answered,  that  in  inquiring  whether  the 
Amelia  was  in  danger  or  not,  this  court  must  put  itself  in  the  place  of 
a  French  court  of  admiralty,  and  determine  as  such  court  would  have 
determined.  Doing  this,  there  seems  to  be  no  reason  to  doubt,  that  the 
cargo,  without  inquiring  into  the  precise  situation  of  the  British  power 
in  every  part  of  Bengal,  being  prima  facie  of  the  product  and  manu- 
facture of  a  possession  of  England,  would  have  been  so  considered, 
unless  the  contrary  could  have  been  plainly  shown. 

The  next  fact  relied  on  by  the  defendant  in  error  is,  that  the  Amelia 
was  sent  to  be  adjudged  according  to  the  laws  of  war,  and  from  thence 
it  is  inferred,  that  she  could  not  have  been  judged  according  to  the 
decree  of  the  18th  of  January.  It  is  to  be  remembered,  that  these 
are  the  orders  of  the  captor,  and  without  a  question,  in  the  language 
of  a  French  cruiser,  a  law  of  his  own  country  furnishing  a  rule  of 
conduct  in  time  of  war,  will  be  spoken  of  as  one  of  the  laws  of  war. 


148  JUDGMENTS  OF  THE  SUPREME  COURT 

But  the  third  and  fourth  facts  in  the  statement  admit  the  Amelia, 
with  her  cargo,  to  have  belonged  to  a  citizen  of  Hamburg,  which  city 
was  not  in  a  state  of  hostiUty  with  the  RepubHc  of  France,  but  was 
to  be  considered  as  neutral  between  the  then  belligerent  powers.  It 
has  been  contended,  that  these  facts  not  only  do  not  show  the  recap- 
tured vessel  to  have  been  one  on  which  the  decree  could  operate,  but 
positively  show  that  the  decree  could  not  have  affected  her.  The 
whole  statement,  taken  together,  amounts  to  nothing  more  than  that 
Hamburg  was  a  neutral  city ;  and  it  is  precisely  against  neutrals,  that 
the  decree  is  in  terms  directed.  To  prove,  therefore,  that  the  Amelia 
was  a  neutral  vessel,  is  to  prove  her  within  the  very  words  of  the  de- 
cree, and  consequently,  to  establish  the  reality  of  her  danger. 

Among  the  very  elaborate  arguments  which  have  been  used  in  this 
case,  there  are  some  which  the  court  deem  it  proper  more  particu- 
larly to  notice.  It  has  been  contended,  that  this  decree  might  have 
been  merely  in  terrorem;  that  it  might  never  have  been  executed;  and 
that,  being  in  opposition  to  the  law  of  nations,  the  court  ought  to 
presume  it  never  would  have  been  executed.  But  the  court  can  not 
presume  the  laws  of  any  country  to  have  been  enacted  in  terrorem; 
nor  that  they  will  be  disregarded  by  its  judicial  authority.  Their 
obligation  on  their  own  courts  must  be  considered  as  complete;  and 
without  resorting  either  to  public  notoriety,  or  the  declarations  of  our 
own  laws  on  the  subject,  the  decisions  of  the  French  courts  must  be 
admitted  to  have  conformed  to  the  rules  prescribed  by  their  govern- 
ment. 

It  has  been  contended,  that  France  is  an  independent  nation,  entitled 
to  the  benefits  of  the  law  of  nations ;  and  further,  that  if  she  has 
violated  them,  we  ought  not  to  violate  them  also,  but  ought  to  remon- 
strate against  such  misconduct.  These  positions  have  never  been 
controverted ;  but  they  lead  to  a  very  different  result  from  that  which 
they  have  been  relied  on  as  producing. 

The  respect  due  to  France  is  totally  unconnected  with  the  danger  in 
which  her  laws  had  placed  the  Amelia;  nor  is  France  in  any  manner  to 
be  affected  by  the  decree  this  court  may  pronounce.  Her  interest  in 
the  vessel  was  terminated  by  the  recapture,  which  was  authorized  by 
the  state  of  hostility  then  subsisting  between  the  two  nations.  From 
that  time,  it  has  been  a  question  only  between  the  Amelia  and  the  re- 
captor,  with  which  France  has  nothing  to  do. 

It  is  true,  that  a  violation  of  the  law  of  nations  by  one  power  does 


TALBOT  V.  SEEMAN  (THE  AMELIA)  I49 

not  justify  its  violation  by  another;  but  that  remonstrance  is  the  proper 
course  to  be  pursued,  and  this  is  the  course  which  has  been  pursued. 
America  did  remonstrate,  most  earnestly  remonstrate,  to  France, 
against  the  injuries  committed  on  her;  but  remonstrance  having  failed, 
she  appealed  to  a  higher  tribunal,  and  authorized  limited  hostilities: 
this  was  not  violating  the  law  of  nations,  but  conforming  to  it.  In  the 
course  of  these  limited  hostilities,  the  Amelia  has  been  recaptured,  and 
the  inquiry  now  is,  not  whether  the  conduct  of  France  would  justify 
a  departure  from  the  law  of  nations,  but  what  is  the  real  law  in  the 
case?     This  depends  on  the  danger  from  which  she  has  been  saved. 

Much  has  been  said  about  the  general  conduct  of  France  and  En- 
gland on  the  seas,  and  it  has  been  urged,  that  the  course  of  the  latter 
has  been  still  more  injurious  than  that  of  the  former.  That  is  a  con- 
sideration not  to  be  taken  up  in  this  cause :  animadversions  on  either, 
in  the  present  case,  would  be  considered  as  extremely  unbecoming 
the  judges  of  this  court,  who  have  only  to  inquire  what  was  the  real 
danger  in  which  the  laws  of  one  of  the  countries  placed  the  Amelia, 
and  from  which  she  has  been  freed  by  her  recapture. 

It  has  been  contended,  that  an  illegal  commission  to  take,  given 
by  France,  can  not  authorize  our  vessels  to  retake ;  that  we  have  no 
right  by  legislation  to  grant  salvage  out  of  the  property  of  a  citizen 
of  Hamburg,  who  might  have  objected  to  the  condition  of  the  service. 
But  it  is  not  the  authority  given  by  the  French  Government  to  cap- 
ture neutrals,  which  is  legalizing  the  recapture  made  by  Captain 
Talbot;  it  is  the  state  of  hostility  between  the  two  nations  which  is 
considered  as  having  authorized  that  act.  The  recapture  having  been 
made  lawfully,  then  the  right  to  salvage,  on  general  principles,  depends 
on  the  service  rendered.  We  can  not  presume  this  service  to  have 
been  unacceptable  to  the  Hamburger,  because  it  has  bettered  his  con- 
dition ;  but  a  recapture  must  always  be  made  without  consulting  the 
recaptured.  The  act  is  one  of  the  incidents  of  war,  and  is,  in  itself, 
only  offensive  as  against  the  enemy.  The  subsequent  fate  of  the  re- 
captured depends  on  the  service  he  has  received,  and  on  other  cir- 
cumstances. 

To  give  a  right  to  salvage,  it  is  said,  there  must  be  a  contract, 
either  express  or  implied.  Had  Hamburg  been  in  a  state  of  declared 
war  with  France,  recaptured  vessels  of  that  city  would  be  admitted 
to  be  liable  to  pay  salvage.  If  a  contract  be  necessary,  from  what 
circumstances  would  the  law,  in  that  state  of  things,  imply  it?   Clearly, 


150         JUDGMENTS  OF  THE  SUPREME  COURT 

from  the  benefit  received,  and  the  risk  incurred.  If,  in  the  actual 
state  of  things,  there  was  also  benefit  and  risk,  then  the  same  cir- 
cumstances concur,  and  they  warrant  the  same  result. 

It  is  also  urged,  that  to  maintain  this  right,  the  danger  ought  not 
to  be  merely  speculative,  but  must  be  imminent  and  the  loss  certain. 
That  a  mere  speculative  danger  will  not  be  sufficient  to  entitle  a  per- 
son to  salvage,  is  unquestionably  true.  But  that  the  danger  must  be 
such,  that  escape  from  it  by  other  means  was  inevitable,^  can  not  be 
admitted.  In  all  the  cases  stated  by  the  counsel  for  the  defendant  in 
error,  safety  by  other  means  was  possible,  though  not  probable.  The 
flames  of  a  ship  on  fire  might  be  extinguished  by  the  crew,  or  by  a 
sudden  tempest.  A  ship  on  the  rocks  might  possibly  be  gotten  off,  by 
the  aid  of  wind  and  tides,  without  assistance  from  others.  A  vessel 
captured  by  an  enemy  might  be  separated  from  her  captor,  and  if 
sailors  had  been  placed  on  board  the  prize,  a  thousand  accidents  might 
possibly  destroy  them ;  or  they  might  even  be  blown  by  a  storm  into  a 
port  of  the  country  to  which  the  prize  vessel  originally  belonged.  It 
can  not,  therefore,  be  necessary  that  the  loss  should  be  inevitably  cer- 
tain ;  but  it  is  necessary  that  the  danger  should  be  real  and  imminenit. 
It  is  believed  to  have  been  so,  in  this  case.  The  captured  vessel  was 
of  such  description  that  the  law  by  which  she  was  to  be  tried,  con- 
demned her  as  good  prize  to  the  captor.  Her  danger,  then,  was  real 
and  imminent.  The  service  rendered  her  was  an  essential  service, 
and  the  court  is,  therefore,  of  opinion,  that  the  recaptor  is  entitled  to 
salvage, 

3.  The  next  object  of  inquiry  is,  what  salvage  ought  to  be  allowed? 
The  captors  claim  one-half  the  gross  value  of  the  ship  and  cargo.  To 
support  this  claim  they  rely  on  the  "act  for  the  government  of  the 
navy  of  the  United  States,"  passed  the  2d  of  March,  1799.  This  act 
regulates  the  salvage  payable  on  the  ships  and  goods  belonging  to  the 
citizens  of  the  United  States,  or  to  the  citizens  or  subjects  of  any 
nation  in  amity  with  the  United  States,  retaken  from  the  enemy.  It 
has  been  contended,  that  the  case  before  the  court  is  in  the  very  words 
of  the  act.  That  the  owner  of  the  Amelia  is  a  citizen  of  a  state  in 
amity  with  the  United  States,  retaken  from  the  enemy.  That  the 
description  would  have  been  more  limited,  had  the  intention  of  the  act 
been  to  restrain  its  application  to  a  recaptured  vessel  belonging  to  a 
nation  engaged  with  the  United  States  against  the  same  enemy.    The 

words  of  the  act  would  certainly  admit  of  this  construction. 

m 

1  [impossible] 


TALBOT  V.  SEEMAN  (THE  AMELIA)  151 

Against  it,  it  has  been  urged,  and  we  think  with  great  force,  that  the 
laws  of  the  United  States  ought  not,  if  it  be  avoidable,  so  to  be  con- 
strued as  to  infract  the  common  principles  and  usages  of  nations,  or 
the  general  doctrines  of  national  law.  If  the  construction  contended 
for  be  given  to  the  act,  it  subjects  to  the  same  rate  of  salvage  a  re- 
captured neutral,  and  a  recaptured  belligerent  vessel.  Yet,  according 
to  the  law  of  nations,  a  neutral  is  generally  to  be  restored  without 
salvage. 

This  argument,  in  the  opinion  of  the  court,  derives  great  additional 
weight  from  the  consideration  that  the  act  in  question  is  not  tem- 
porary, but  permanent.  It  is  not  merely  fitted  to  the  then  existing 
state  of  things,  and  calculated  to  expire  with  them,  but  is  a  regulation 
applying  to  present  and  future  times.  Whenever  the  danger  resulting 
to  captured  neutrals  from  the  laws  of  France  should  cease,  then,  ac- 
cording to  the  principles  laid  down  in  this  decree,  the  liability  of  re- 
captured neutrals  to  the  payment  of  salvage  would,  in  conformity  with 
the  general  law  and  usage  of  nations,  cease  also.  This  event  might 
have  happened,  and  probably  did  happen,  before  hostilities  between 
the  United  States  and  France  were  terminated  by  treaty.  Yet,  if  this 
law  applies  to  the  case,  salvage  from  a  recaptured  neutral  would 
still  be  demandable.  This  act,  then,  if  the  words  admit  it,  since  it 
provides  a  permanent  rule  for  the  payment  of  salvage,  ought  to  be 
construed  to  apply  only  to  cases  in  which  salvage  is  pemianently 
payable. 

On  inspecting  tne  clause  in  question,  the  court  is  struck  with  the 
description  of  those  from  whom  the  vessel  is  to  be  retaken,  in  order 
to  come  within  the  provisions  of  the  act.  The  expression  used  is,  the 
enemy :  a  vessel  retaken  from  the  enemy.  The  enemy  of  whom  ?  The 
court  thinks  it  not  unreasonable  to  answer,  of  both  parties.  By  this 
construction,  the  act  of  Congress  will  never  violate  those  principles 
which  we  believe,  and  which  it  is  our  duty  to  believe,  the  legislature 
of  the  United  States  will  always  hold  sacred. 

If  this  act  does  not  comprehend  the  case,  then  the  court  is  to  decide, 
on  a  just  estimate  of  the  danger  from  which  the  recaptured  was 
saved,  and  of  the  risk  attending  the  retaking  of  the  vessel,  what  is  a 
reasonable  salvage.  Considering  the  circumstances,  and  considering 
also  what  rule  has  been  adopted  in  other  courts  of  admiralty,  one- 
sixth  appears  to  be  a  reasonable  allowance. 

It  is,  therefore,  the  opinion  of  the  court,  that  the  decree  of  the 


152  JUDGMENTS  OF  THE  SUPREME  COURT 

circuit  court,  held  for  the  district  of  New  York,  was  correct,  in  re- 
versing the  decree  of  the  district  court,  but  not  correct  in  decreeing 
the  restoration  of  the  Amelia,  without  paying  salvage.  This  court, 
therefore,  is  of  opinion,  that  the  decree,  so  far  as  the  restoration  of 
the  Amelia,  without  salvage,  is  ordered,  ought  to  be  reversed,  and 
that  the  Amelia  and  her  cargo  ought  to  be  restored  to  the  claimant,  on 
paying  for  salvage  one-sixth  part  of  the  net  value,  after  deducting 
therefrom  the  charges  wliich  have  been  incurred. 


THE  im^ITED  STATES  v.  The  Schooner  PEGGY^ 
Definitive   decree. — Judicial   notice. — High   seas 

A  final  condemnation  in  an  inferior  court  of  admiralty,  where  a  right  of  appeal 
exists,  and  has  been  claimed,  is  not  a  definitive  condemnation,  within  the 
meaning  of  the  4th  article  of  the  convention  with  France,  signed  September 
30,  1800.2 

The  court  is  as  much  bound,  as  the  executive,  to  take  notice  of  a  treaty,  and 
will  reverse  the  original  decree  of  condemnation  (although  it  was  correct 
when  made),  and  decree  restoration  of  the  property,  under  the  treaty  made 
since  the  original  condemnation. 

Quaere,  as  to  the  extent  of  the  term  'high  seas"? 

Error  to  the  Circuit  Court  for  the  District  of  Connecticut,  on  a 
question  of  prize.  The  facts  found  and  stated  by  Judge  Law,  the 
district  judge,  were  as  follows : 

That  the  ship  Trumbull,  duly  commissioned  by  the  President  of 
the  United  States,  with  instructions  to  take  any  armed  French 
vessel  or  vessels,  sailing  under  authority,  or  pretense  of  authority, 
from  the  French  Republic,  which  shall  be  found  within  the  juris- 
dictional limits  of  the  United  States,  or  elsewhere  on  the  high 
seas,  etc.,  as  set  forth  in  said  instructions ;  and  said  ship  did,  on 
the  24th  day  of  April  last  (April,  1800),  capture  the  schooner 
Peggy,  after  running  her  ashore,  a  few  miles  to  the  w^estward  of 
Port  au  Prince,  within  the  dominions  and  territory  of  General 
Toussaint,  and  has  brought  her  into  port,  as  set  forth  in  the  libel ; 
and  it  further  appears,  that  all  the  facts  contained  in  the  claim 
are    true  f    whereupon,    this    court    are    of    opinion    that    as    it 


1  1  Cranch,  103;  December  term,  1801. 

2  Infra,  p.  487. 

3  The  material  facts  stated  in  the  claim  are,  that  the  schooner  was  the 
property  of  citizens  of  the  French  Republic ;  that  she  was  permitted  by  Toussaint 
to  receive  on  board  the  cargo,  which  was  on  board  at  the  time  of  capture ;  that 


UNITED  STATES  v.  SCHOONER  PEGGY  153 

appears  that  the  said  schooner  was  solely  upon  a  trading  voyage, 
and  sailed  under  the  permission  of  Toussaint,  with  dispatches  for 
the  French  Government,  under  a  convoy  furnished  by  Toussaint, 
with  directions  to  touch  at  Leogane  for  supplies,  and  that  the 
arms  she  had  on  board  must  be  presumed  to  be  only  for  self- 
defense  ;  neither  does  it  appear  she  had  ever  made,  or  attempted 
to  make,  any  depredations,  and  that  she  was  not  such  an  armed 
vessel  as  was  meant  and  intended  by  the  laws  of  the  United  States 
should  be  subject  to  capture  and  condemnation ;  and  that  the  situ- 
ation she  was  in.  at  the  time  of  capture,  being  aground  within  the 
territory  and  jurisdiction  of  Toussaint,  she  was  not  on  the  high 
seas,  so  as  to  be  intended  to  be  within  the  instructions  given  to 
the  commanders  of  American  ships  of  war:  therefore,  adjudge 
said  schooner  is  not  a  lawful  prize,  and  decree  that  said  schooner 
with  her  cargo  be  restored  to  the  claimant. 

From  this  decree,  the  attorney  for  the  United  States,  in  behalf  of 
the  United  States  and  the  commander,  officers  and  crew  of  the  Trum- 
bull, appealed  to  the  circuit  court,  in  which  Judge  Gushing  sat  alone, 
as  the  district  judge  declined  sitting  in  the  cause,  on  account  of  the 
interest  of  his  son,  who  was  one  of  the  officers  on  board  the  Trumbull, 
at  the  time  of  capture,  and  who,  if  the  schooner  should  be  condemned, 
would  be  entitled  to  a  share  of  the  prize-money.  The  circuit  court,  on 
the  appeal,  found  the  following  facts,  and  gave  the  following  opinion 
and  decree: 

That  David  Jewett,  commander  of  the  said  public  armed  vessel, 
called  the  Trumbull,  being  duly  commissioned,  and  instructed  by 
the  President  of  the  United  States,  as  set  forth  in  the  said  libel, 
did,  on  or  about  the  23d  of  April  last,  capture  the  said  schooner 
Peggy,  after  running  her  aground,  about  pistol-shot  from  the 
shore,  a  few  miles  to  the  westward  of  Port  au  Prince,  called  also 
Port  Republican,  on  the  coast  of  the  island  of  St.  Domingo,  and 

she  had  dispatches  from  Toussaint  to  France;  that  she  sailed  by  his  authority, 
on  the  23d  of  April,  for  France,  navigated  by  ten  men,  including  Buisson,  the 
claimant,  and  Gillibert,  the  commander,  and  having  on  board  four  small  three- 
pound  carriage-guns,  solely  for  defense  against  piratical  assaults,  and  being  under 
convoy  of  a  tender,  furnished  by  Toussaint.  That  on  the  2,3d  of  April,  she  was 
run  ashore,  a  few  miles  to  the  westward  of  Port  au  Prince,  within  the  dominion, 
jurisdiction  and  territory  of  General  Toussaint,  so  that  she  zvas  fast  and  tight 
aground;  at  which  time,  and  in  which  situation,  the  boats  and  crew  of  the 
Trumbull  attacked  and  took  possession  of  her,  and  got  her  off.  That  Toiissaint 
then  was,  and  still  is,  on  terms  of  amity,  commerce  and  friendship  with  the 
United  States,  duly  entered  into  and  ratified  by  treaty.  That  the  schooner  was 
on  a  lawful  voyage,  for  the  sole  purpose  of  trade;  and  not  commissioned,  or 
in  a  condition  to  annoy  or  injure  the  trade  or  commerce  of  the  United  States. 


154         JUDGMENTS  OF  THE  SUPREME  COURT 

afterwards  bring  her  into  port,  as  set  forth  in  the  libel.  That  at 
the  time  of  the  capture  of  the  said  schooner,  there  were  ten  per- 
sons aboard  her.  That  she  was  then  armed  with  four  carriage- 
guns,  being  four-pounders,  with  four  swivel-guns,  six  muskets, 
four  pistols,  four  cutlasses,  two  axes,  some  boarding-hatchets, 
tomahawks  and  handcuffs.  That  she  was  a  trading  French  vessel 
of  about  a  hundred  tons,  then  laden  with  coffee,  sugar  and  other 
merchandise.  That  she  had  come  from  Bordeaux  to  Port  au 
Prince,  where  the  claimant  had  taken  in  said  cargo,  and  from 
whence  he  sailed,  on  or  about  the  said  23d  day  of  April,  with 
said  schooner  and  cargo,  having  dispatches  from  General  Tous- 
saint  for  the  French  Government.  That  the  said  Buisson  sailed 
from  Port  au  Prince  as  aforesaid,  with  the  permission  and  direc- 
tion of  General  Toussaint,  to  proceed  to  Bordeaux ;  that  said 
schooner  so  sailed  from  Port  au  Prince,  under  convoy  of  an  armed 
vessel,  by  order  of  said  Toussaint,  without  a  passport  from  Mr. 
Stevens,  consul-general  of  the  United  States  at  St.  Domingo,  but 
that  Buisson  had  been  promised  by  Toussaint's  brother,  that  one 
should  be  obtained  and  sent  him,  which,  however,  was  not  done; 
that  said  schooner  had  sailed  from  Bordeaux  for  Port  au  Prince, 
with  fifteen  men,  besides  eight  passengers  (according  to  the  roll 
of  equipage),  armed  with  some  guns,  swivels  and  muskets;  that 
said  Captain  Buisson  was  without  any  commission  as  for  a  vessel 
of  war,  and  alleges  that  he  was  armed  only  for  self-defense.  That 
at  the  time  of  said  capture,  the  guns  of  said  schooner  were  loaded 
with  canister-shot,  one  of  which  being  fired,  the  shot  fell  near 
the  bow  of  the  Trumbull;  but  the  said  Buisson  declares  that  said 
gun  was  fired  only  as  a  signal  to  his  convoy.  That  the  said  Cap- 
tain Buisson  appeared  to  be  in  a  disposition,  and  was  prepared 
with  force,  to  resist  the  boats  which  were  sent  from  the  Trumbull 
to  board  him,  a  little  previous  to  the  capture,  in  case  of  their 
attempting  it ;  and  that  the  said  schooner  and  cargo  are  French 
property. 

Upon  these  facts,  the  court  is  of  opinion  as  follows,  viz. :  How- 
ever compassion  may  be  moved  in  favor  of  the  claimant  by  some 
circumstances ;  such  as  that  he  was  charged  with  dispatches  from 
General  Toussaint,  between  whom  and  the  United  States  there 
were  some  friendly  arrangements  respecting  commerce;  that  he 
was  not  in  a  capacity  of  greatly  annoying  trade,  from  the  fewness 
of  his  men ;  and  his  allegation  that  he  was  armed  only  in  defense; 
yet  as  the  court  is  bound  by  law,  which  makes  no  such  distinc- 
tions ;  as  armed  French  vessels  are  not  protected  by  any  treaty  or 
convention ;  particularly,  not  by  the  regulations  between  General 
Toussaint  and  the  American  consul ;  and  as  the  said  schooner 
P^^Sy  was  in  a  condition  capable  of  annoying,  and  even  of  cap- 
turing single  unarmed  trading  vessels,  unattended  with  convoy ; 
the  court  can  not  avoid  being  of  opinion,  that  she  falls  within  the 


UNITED  STATES  v.  SCHOONER  PEGGY  155 

description  and  general  design  of  the  expression  of  the  law,  an 
armed  French  vessel. 

2d.  That  she  was  captured  on  the  high  seas :  the  argument  taken 
by  the  claimant's  counsel,  from  the  extent  of  national  jurisdic- 
tion on  seacoasts  bordering  on  the  country,  not  applying  to  this 
case,  so  as  to  acquit  the  said  schooner ;  the  seacoast  of  St.  Do- 
mingo not  being  neutral ;  not  made  so  by  any  treaty  or  conven- 
tion ;  but  to  be  considered  as  hostile,  upon  our  present  plan  of 
laws  of  defense  with  respect  to  France ;  as  much  so  as  any  part 
of  the  coast  of  France,  as  far  as  regards  French  armed  vessels ; 
the  court  is,  therefore,  of  opinion  that  the  said  schooner  Peggy 
and  cargo  are  lawful  prize : 

It  is,  therefore,  considered,  decreed  and  adjudged  by  this  court, 
that  the  decree  of  the  district  court  respecting  the  same,  so  far 
as  regards  their  acquittal,  be,  and  the  same  is  hereby  reversed ;  and 
that  the  said  schooner,  with  her  apparel,  guns  and  appurtenances, 
and  the  goods  and  effects  which  were  found  on  board  of  her  at 
the  time  of  capture,  and  brought  into  port  as  aforesaid,  be,  and 
the  same  are  hereby  condemned  as  forfeited  to  the  use  of  the 
United  States,  and  of  the  ofificers  and  men  of  the  said  armed  ves- 
sel called  the  Trumbull,  one-half  thereof  to  the  United  States,  the 
other  half  to  the  officers  and  men,  to  be  divided  according  to  law ; 
the  said  schooner  Peggy  being  of  inferior  force  to  the  said  armed 
vessel  called  the  Trumbull. 

This  sentence  and  decree  were  pronounced  on  the  23d  day  of  Sep- 
tember,   1800. 

During  the  present  term,  and  before  the  court  gave  judgment  upon 
this  writ  of  error,  viz.,  on  the  21st  of  December,  1801,  the  conven- 
tion with  France  was  finally  ratified  by  the  President ;  the  fourth 
article  of  which  convention  has  these  words :  "Property  captured,  and 
not  yet  definitively  condemned,  or  which  may  be  captured  before  the 
exchange  of  ratifications  (contraband  goods  destined  to  an  enemy's 
port  excepted),  shall  be  mutually  restored."  "This  article  shall  take 
effect  from  the  date  of  the  signature  of  the  present  convention.  And 
if,  from  the  date  of  the  said  signature,  any  property  shall  be  con- 
demned, contrary  to  the  intent  of  the  said  convention,  before  the 
knowledge  of  this  stipulation  shall  be  obtained,  the  property  so  con- 
demned shall,  without  delay,  be  restored  or  paid  for." 

On  the  30th  of  September,  1800,  this  convention  was  signed  by  the 
respective  plenipotentiaries  of  the  two  nations,  at  Paris.  On  the  18th 
of  February,  1801,  it  was  ratified  by  the  President  of  the  United 
States,  with  the  advice  and  consent  of  the  Senate,  excepting  the  2d 


156  JUDGMENTS  OF  THE  SUPREME  COURT 

article,  and  with  a  limitation  of  the  duration  of  the  convention  to  the 
term  of  eight  years.  On  the  31st  of  July,  1801,  the  ratifications  were 
exchanged  at  Paris,  with  a  proviso  that  the  expunging  of  the  2d  article 
should  be  considered  as  a  renunciation  of  the  respective  pretensions 
which  were  the  object  of  that  article. 

This  proviso  being  considered  by  the  President  as  requiring  a  re- 
newal of  the  assent  of  the  Senate,  he  sent  it  to  them  for  their  advice. 
They  returned  it,  with  a  resolve  that  they  considered  the  convention  as 
fully  ratified.  Whereupon,  on  the  21st  of  December,  1801,  it  was  pro- 
mulged  by  a  proclamation  of  the  President. 

The  controversy  turned  principally  upon  two  points:  1st.  Whether 
the  capture  could  be  considered  as  made  on  the  high  seas,  according 
to  the  import  of  that  term,  as  used  in  the  Act  of  Congress  of  July  9th, 
1798  (1  U.  S.  Stat.  578).  2d.  Whether,  by  the  sentence  of  condem- 
nation, by  the  circuit  court,  on  the  23d  of  September,  1800,  the 
schooner  Peggy  could  be  considered  as  definitively  condemned,  within 
the  meaning  of  the  4th  article  of  the  convention  with  France,  signed 
at  Paris,  on  the  30th  of  September,  1800.  The  writ  of  error  was  dated 
on  the  2d  of  October,  1800. 

Griswold  and  Bayard,  for  the  captors. 

Mason,  for  the  claimant.^ 

The  Chief  Justice  delivered  the  opinion  of  the  court. — In  this  case, 
the  court  is  of  opinion  that  the  schooner  Peggy  is  within  the  provi- 
sions of  the  treaty  entered  into  with  France,  and  ought  to  be  restored. 
This  vessel  is  not  considered  as  being  definitively  condemned.  The 
argument  at  the  bar  which  contends  that  because  the  sentence  of  the 
circuit  court  is  denominated  a  final  sentence,  therefore,  its  condem- 
nation is  definitive,  in  the  sense  in  which  that  term  is  used  in  the 
treaty,  is  not  deemed  a  correct  argument.  A  decree  or  sentence  may 
be  interlocutory  or  final,  in  the  court  which  pronounces  it,  and  re- 
ceives its  appellation  from  its  determining  the  power  of  that  particular 
court  over  the  subject  to  which  it  applies,  or  being  only  an  intermedi- 
ate order,  subject  to  the  future  control  of  the  same  court.  The  last 
decree  of  an  inferior  court  is  final,  in  relation  to  the  power  of  that 
court,  but  not  in  relation  to  the  property  itself,  unless  it  be  acquiesced 
under.    The  terms  used  in  the  treaty  seem  to  apply  to  the  actual  con- 


1 1  regret  that  not  having  the  notes  of  this  case,  I  am  unable  to  report  the 
very  ingenious,  arguments  of  the  learned  counsel. 


UNITED  STATES  v.  SCHOONER  PEGGY  157 

dition  of  the  property,  and  to  direct  a  restoration  of  that  which  is  still 
in  controversy  between  the  parties.  On  any  other  construction,  the 
word  definitive  would  be  rendered  useless  and  inoperative.  Vessels 
are  seldom,  if  ever,  condemned,  but  by  a  final  sentence:  an  inter- 
locutory order  for  a  sale  is  not  a  condemnation.  A  stipulation,  then, 
for  the  restoration  of  vessels,  not  yet  condemned,  would,  on  this  con- 
struction, comprehend  as  many  cases  as  a  stipulation  for  the  restora- 
tion of  such  as  are  not  yet  definitively  condemned.  Every  condemna- 
tion is  final  as  to  the  court  which  pronounces  it,  and  no  other  differ- 
ence is  perceived  between  a  condemnation  and  a  final  condemnation, 
than  that  the  one  terminates  definitively  the  controversy  between  the 
parties,  and  the  other  leaves  that  controversy  still  depending.  In  this 
case,  the  sentence  of  condemnation  was  appealed  from ;  it  might  have 
been  reversed,  and  therefore,  was  not  such  a  sentence  as,  in  the  con- 
templation of  the  contracting  parties,  on  a  fair  and  honest  construc- 
tion of  the  contract,  was  designated  as  a  definitive  condemnation. 

It  has  been  urged,  that  the  court  can  take  no  notice  of  the  stipulation 
for  the  restoration  of  property  not  yet  definitely  condemned ;  that  the 
judges  can  only  inquire  whether  the  sentence  was  erroneous,  when 
delivered,  and  that  if  the  judgment  was  correct,  it  can  not  be  made 
otherwise,  by  anything  subsequent  to  its  rendition.  The  Constitution 
of  the  United  States  declares  a  treaty  to  be  the  supreme  law  of  the 
land.  Of  consequence,  its  obligation  on  the  courts  of  the  United 
States  must  be  admitted.  It  is  certainly  true,  that  the  execution  of  a 
contract  between  nations  is  to  be  demanded  from,  and  in  the  general, 
superintended  by,  the  executive  of  each  nation;  and  therefore,  what- 
ever the  decision  of  this  court  may  be,  relative  to  the  rights  of  parties 
litigating  before  it,  the  claim  upon  the  nation,  if  unsatisfied,  may  still 
be  asserted.  But  yet,  where  a  treaty  is  the  law  of  the  land,  and  as 
such  aflFects  the  rights  of  parties  litigating  in  court,  that  treaty  as 
much  binds  those  rights,  and  Is  as  much  to  be  regarded  by  the  court, 
as  an  act  of  Congress ;  and  although  restoration  may  be  an  executive, 
when  viewed  as  a  substantive  act,  independent  of,  and  unconnected 
with,  other  circumstances,  yet  to  condemn  a  vessel,  the  restoration  of 
which  is  directed  by  a  law  of  the  land,  would  be  a  direct  infraction  of 
that  law,  and  of  consequence,  improper. 

It  is,  in  the  general,  true,  that  the  province  of  an  appellate  court  is 
only  to  inquire  whether  a  judgment,  when  rendered,  was  erroneous 
or  not.     But  if,  subsequent  to  the  judgment,  and  before  the  decision 


158         JUDGMENTS  OF  THE  SUPREME  COURT 

of  the  appellate  court,  a  law  intervenes  and  positively  changes  the  rule 
which  governs,  the  law  must  be  obeyed,  or  its  obligation  denied.  If  the 
law  be  constitutional,  and  of  that  no  doubt,  in  the  present  case,  has 
been  expressed,  I  know  of  no  court  which  can  contest  its  obligation.  It 
is  true  that  in  mere  private  cases  between  individuals,  a  court  will  and 
ought  to  struggle  hard  against  a  construction  which  will,  by  a  retro- 
spective operation,  affect  the  rights  of  parties,  but  in  great  national 
concerns,  where  individual  rights,  acquired  by  war,  are  sacrificed  for 
national  purposes,  the  contract  making  the  sacrifice  ought  always  to 
receive  a  construction  conforming  to  its  manifest  import ;  and  if  the 
nation  has  given  up  the  vested  rights  of  its  citizens,  it  is  not  for  the 
court,  but  for  the  government,  to  consider  whether  it  be  a  case  proper 
for  compensation.  In  such  a  case,  the  court  must  decide  according  to 
existing  laws,  and  if  it  be  necessary  to  set  aside  a  judgment,  rightful 
when  rendered,  but  which  can  not  be  affirmed,  but  in  violation  of  law, 
the  judgment  must  be  set  aside. 


ALEXANDER  MURRAY,  Esq.,  v.  Schooner  CHARMING 

BETSY^ 

Marine  trespass. — Probable  cause. — Damages. — Expatriation. — Armed 

vessel 

An  American  vessel,  sold  in  a  Danish  island,  to  a  person  who  was  born  in  the 
United  States,  but  who  had  bona  fide  become  a  burgher  of  that  island,  and 
sailing  from  thence  to  a  French  island,  in  June,  1800,  with  a  new  cargo 
purchased  by  her  new  owner,  and  under  the  Danish  flag,  was  not  liable 
to  seizure,  under  the  non-intercourse  law  of  February  27,  1800.^ 

If  there  was  no  reasonable  ground  of  suspicion  that  she  was  a  vessel  trading 
contrary  to  that  law,  the  commander  of  a  United  States  ship  of  war,  who 
seizes  and  sends  her  in,  is  liable  for  damages. 

The  report  of  assessors  appointed  by  the  court  of  admiralty  to  assess  the 
damages,  ought  to  state  the  principles  on  which  it  is  founded,  and  not  a 
gross  sum,  without  explanation. 

An  American  citizen,  residing  in  a  foreign  country,  may  acquire  the  commercial 
privileges  attached  to  his  domicil ;  and  by  making  himself  the  subject  of  a 
foreign  power,  he  places  himself  out  of  the  protection  of  the  United  States, 
while  within  the  territory  of  the  sovereign  to  whom  he  has  sworn  alle- 
giance. 


1  2  Cranch,  64 ;  February  term,  1804. 

2  Supra,  p.  84. 


MURRAY  V.   SCHOONER  CHARMING  BETSY  159 

Quaere f  Whether  a  citizen  of  the  United  States  can  divest  himself  absolutely 
of  that  character  otherwise  than  in  such  manner  as  may  be  prescribed  by 
law? 

Whether,  by  becoming  the  subject  of  a  foreign  power,  he  is  freed  from  pun- 
ishment for  a  crime  against  the  United  States? 

What  degree  of  arming  constitutes  an  armed  vessel? 

The  facts  of  this  case  are  thus  stated  by  the  District  Judge  in  his 
decree. 

The  Hbel  in  this  cause  is  founded  on  the  act  entitled  "an  act  fur- 
ther to  suspend  the  commercial  intercourse  between  the  United 
States  and  France,  and  the  dependencies  thereof"  (27th  February, 
1800.  2  U.  S.  Stat.  7)  ;  and  states  that  the  schooner  (The  Charm- 
ing Betsy)  sailed  from  Baltimore,  after  the  passing  of  that  act, 
owned,  hired  or  employed  by  persons  resident  within  the  United 
States,  or  by  citizens  thereof,  resident  elsewhere,  bound  to  Guade- 
loupe, and  was  taken  on  the  high  seas,  on  the  1st  of  June,  1800, 
by  the  libellant,  then  commander  of  the  public  armed  ship  the 
Constellation,  in  pursuance  of  instructions  given  to  the  libellant, 
by  the  President  of  the  United  States,  there  being  reason  to  sus- 
pect her  to  be  engaged  in  a  traffic  or  commerce  contrary  to  the 
said  act,  etc.  The  claim  and  answer,  replication  and  rejoinder, 
are  referred  to  for  a  further  statement  of  the  proceedings  in  this 
case,  on  all  which  I  ground  my  decree.  On  a  careful  attention  to 
the  exhibits  and  testimony  in  this  cause,  and  after  hearing  of  coun- 
sel, I  am  of  opinion  that  the  following  facts  are  either  acknowl- 
edged in  the  proceedings,  or  satisfactorily  proved. 

That  on  or  about  the  10th  of  April,  1800,  the  schooner,  now 
called  The  Charming  Betsy,  but  then  called  the  Jane,  sailed  from 
Baltimore,  in  the  district  of  Maryland,  an  American  bottom,  duly 
registered  according  to  law,  belonging  to  citizens  of,  and  resident 
in,  the  United  States,  and  regularly  documented  with  American 
papers ;  that  she  was  laden  with  a  cargo  belonging  to  citizens  of 
the  United  States ;  that  her  destination  was  first  to  St.  Bartholo- 
mew, where  the  master  had  orders  to  effect  a  sale  of  both  vessel 
and  cargo;  but  if  a  sale  of  the  schooner  could  not  be  effected  at 
St.  Bartholomew,  which  was  to  be  considered  the  "primary  ob- 
ject" of  the  voyage,  the  master  was  to  proceed  to  St.  Thomas,  with 
the  vessel  and  such  part  of  the  flour  as  should  be  unsold,  where 
he  was  to  accomplish  the  sale.  That  although  a  sale  of  the  cargo, 
consisting  chiefly  of  flour,  was  effected  at  St.  Bartholomew,  yet 
the  vessel  could  not  there  be  advantageously  disposed  of,  and  the 
master  proceeded,  according  to  his  instructions,  to  St.  Thomas, 
where  a  bona  fide  sale  was  accomplished,  by  Captain  James  Phil- 
lips, on  behalf  of  the  American  owners,  for  a  valuable  considera- 


160  JUDGMENTS  OF  THE  SUPREME  COURT 

tion,  to  a  certain  Jared  Shattuck,  a  resident  merchant  in  the  island 
of  St.  Thomas. 

That  although  it  is  granted  that  Jared  Shattuck  was  born  in 
Connecticut,  before  the  American  revolution,  yet  he  had  removed, 
long  before  any  differences  with  France  in  his  early  youth,  to  the 
island  of  St.  Thomas,  where  he  served  his  apprenticeship,  inter- 
married, opened  a  house  of  trade,  owned  sundry  vessels,  and,  as 
it  is  said,  lands;  which  none  but  Danish  subjects  were  competent 
to  hold  and  possess.  About  the  year  1796,  he  became  a  Danish 
burgher,  invested  with  the  privileges  of  a  Danish  subject,  and 
owing  allegiance  to  his  Danish  majesty.  The  evidence  on  this 
head  is  sufficient  to  satisfy  me  of  these  facts;  though  some  of 
them  might  be  more  fully  proved.  It  does  not  appear,  that  Jared 
Shattuck  ever  returned  to  the  United  States  to  resume  citizenship, 
but  constantly  resided,  and  had  his  domicil,  both  before  and  at  the 
time  of  the  purchase  of  the  schooner  Jane,  at  St.  Thomas.  That 
although  the  schooner  was  armed  and  furnished  with  ammunition, 
on  her  sailing  from  Baltimore,  and  the  cannon,  arms  and  stores 
were  sold  to  Jared  Shattuck  by  a  contract  separate  from  that  of 
the  vessel,  she  was  chiefly  dismantled  of  these  articles  at  St. 
Thomas,  a  small  part  of  the  ammunition,  and  a  trifling  part  of 
the  small  arms  excepted.  That  the  name  of  the  said  schooner  was 
at  St.  Thomas  changed  to  that  of  The  Charming  Betsy,  and  she 
was  documented  with  Danish  papers,  as  the  property  of  Jared 
Shattuck.  That  so  being  the  bona  fide  property  of  Jared  Shattuck, 
she  took  in  a  cargo  belonging  to  him,  and  no  other,  as  appears  by 
the  papers  found  on  board,  and  delivered  to  this  court. 

That  she  sailed,  with  the  said  cargo,  from  St.  Thomas,  on  or 
about  the  25th  day  of  June,  1800,  commanded  by  a  certain  Thomas 
Wright,  a  Danish  burgher,  and  navigated  according  to  the  laws 
of  Denmark,  for  aught  that  appears  to  the  contrary,  bound  to  the 
island  of  Guadeloupe. 

That  on  or  about  the  first  of  July  last,  1800,  she  was  captured, 
on  her  passage  to  Guadeloupe,  by  a  French  privateer,  and  a  prize- 
master  and  seven  or  eight  hands  put  on  board ;  the  Danish  crew 
(except  Captain  Wright,  an  old  man  and  two  boys)  being  taken 
off  by  the  French  privateer.  That  on  the  3d  of  the  same  Tuly, 
she  was  boarded  and  taken  possession  of  by  some  of  the  officers 
and  crew  of  the  Constellation,  under  the  orders  of  Captain  Mur- 
ray, and  sent  into  the  port  of  St.  Pierre,  in  Martinique,  where  she 
arrived  on  the  5th  of  the  same  month  of  July.  I  dn  not  state  the 
contents  of  a  paper  called  a  p7-occs  verbal,  which,  however,  will 
appear  among  the  exhibits,  because,  in  my  opinion,  it  contains 
statements,  either  contrar}^  to  the  real  facts,  or  illusory,  and  cal- 
culated to  serve  the  purposes  of  the  French  captors.  Nor  do  I 
detail  the  number  of  cutlasses,  a  musket  and  a  small  quantity  of 
ammunition    found  on  board,  when  the  schooner  was  boarded  by 


MURRAY  V.  SCHOONER  CHARMING  BETSY  161 

Captain  Murray's  orders.  The  Danish  papers  were  on  board,  and, 
except  the  proces  verbal,  formed  by  the  French  captors,  no  other 
ship's  papers.  The  instructions  of  Captain  Murray  from  the  Pres- 
ident of  the  United  States  comprehend  the  case  of  a  vessel  found 
in  the  possession  of  French  captors,  but  then  it  should  seem,  that 
it  must  be  a  vessel  belonging  to  citizens  of  the  United  States.  It 
does  not  appear  that  Captain  Murray  had  any  knowledge  of  Jared 
Shattuck  being  a  native  of  Connecticut,  or  of  any  of  the  United 
States,  until  he  was  informed  by  Captain  Wright,  at  Martinique. 

It  is  unnecessary  to  go  into  any  disquisition  about  the  instruc- 
tions to  the  commanders  of  public  armed  ships,  whether  they  were 
directory  to  Captain  Murray  in  the  case  in  question ;  and  if  so, 
whether  they  were,  or  not,  strictly  conformable  to  law,  does  not 
finally  justify  an  act  which,  on  investigation,  turns  out  to  be  ille- 
gal, either  as  it  respects  the  municipal  laws  of  our  country  or  the 
laws  of  nations.  Captain  Murray's  respectable  character,  both  as 
an  officer  and  a  citizen  forbids  any  idea  of  his  intention  to  do  a 
wanton  act  of  violence  towards  either  a  citizen  of  the  United 
States,  or  a  subject  of  another  nation.  He,  no  doubt,  thought  it 
his  duty  to  send  the  vessel  in  question  to  the  United  States  for 
adjudication.  He  had  also  reasons  prevailing  with  him,  to  sell 
Jared  Shattuck's  cargo  in  Martinique.  His  sending  the  schooner 
to  Martinique  was  evidently  proper,  and  serviceable  to  the  owner, 
as  she  had  not  a  sufficient  number  of  the  crew  on  board  to  navi- 
gate her.  But  the  further  proceeding  turns  out,  in  my  opinion, 
wrong.  Whatever  probable  cause  might  appear  to  Captain  Mur- 
ray to  justify  his  conduct,  or  excite  suspicion  at  the  time,  he  ran 
the  risk  of,  and  is  amenable  for,  consequences. 

On  a  full  consideration  of  the  facts  and  circumstances  of  this 
case,  I  am  of  opinion  that  the  schooner  Jane,  being  the  same  in 
the  libel  mentioned,  did  not  sail  from  the  United  States  with  an 
intent  to  violate  the  act,  for  a  breach  whereof  the  libel  is  filed. 
That  she  did  not  belong  when  she  sailed  from  St.  Thomas  for 
Guadeloupe,  to  a  citizen  of  the  United  .States,  but  to  a  Danish 
subject.  Jared  Shattuck  either  never  was  a  citizen  of  the  United 
States,  under  our  present  national  arrangement,  or,  if  he  should 
at  any  time  have  been  so  considered,  he  had  lawfully  expatriated 
himself,  and  became  a  subject  of  a  friendly  nation.  No  fraudu- 
lent intent  appears  in  his  case,  either  of  eluding  the  laws  of  the 
United  States,  in  carrying  on  a  covered  trade,  by  such  expatria- 
tion, or  that  he  became  a  Danish  burgher  for  any  purposes  which 
are  considered  as  exceptions  to  the  general  rtile  which  seems  es- 
tablished on  the  subject  of  the  right  of  expatriation.  That,  being 
a  Danish  burgher  and  subject,  he  had  a  lawful  right  to  trade  to 
the  island  of  Guadeloupe,  any  law  of  the  United  States  notwith- 
standing, in  a  vessel  bona  fide  purchased,  either  from  citizens  of 
the  United  States,  or  any  other  vessel  documented  and  adopted 


162  '         JUDGMENTS  OF  THE  SUPREME  COURT 

by  the  Danish  laws.  I  do  not  rely  more  than  it  deserves,  on  the 
circumstance  of  Jared  Shattuck's  burghership  of  which  the  best 
evidence,  to-wit,  the  brief,  or  an  authenticated  copy,  has  not  been 
produced.  I  know  well,  that  this  brief  alone,  unaccompanied  by 
the  strong  ingredients  in  his  case,  might  be  fallacious.  I  take  the 
whole  combination  to  satisfy  me  of  his  being  bona  Ude  a  Danish 
adopted  subject;  and  altogether  it  amounts,  in  my  mind,  to  proof 
of  expatriation. 

The  master  (Wright)  produces  his  Danish  burgher's  brief.  He 
is  a  native  of  Scotland.  But  even  the  British  case  of  Pollard  v. 
Bell,  8  T.  R.  435,  to  which  I  have  been  referred,  shows  that,  with 
all  the  inflexibility  evidenced  in  the  British  code,  on  the  point  of 
expatriation,  a  vessel  was  held  to  be  Danish  property,  if  docu- 
mented according  to  the  Danish  laws,  though  the  master,  who  had 
obtained  a  Danish  burgher's  brief,  was  a  Scotchman.  It  shows, 
too,  that  in  the  opinion  of  the  British  judges  (who  agree,  on  this 
point,  with  the  general  current  of  opinions  of  civilians  and  writ- 
ers on  general  law),  the  municipal  laws  or  ordinances  of  a  coun- 
try do  not  control  the  laws  of  nations.  The  British  courts  have 
gone  great  lengths  to  modify  their  ancient  feudal  law  of  alle- 
giance, so  as  to  moderate  its  rigor,  and  adapt  it  to  the  state  of 
the  modern  world,  which  has  become  most  generally  commercial. 
They  hold  it  to  be  clearly  settled,  that  although  a  natural-born 
subject  can  not  throw  off  his  allegiance  to  the  king,  but  is  always 
amenable  for  criminal  acts  against  it,  yet  for  commercial  purposes 
he  may  acquire  the  rights  of  a  citizen  of  another  country.  (Com. 
Rep.  677,  689.)  I  cite  British  authorities  because  they  have  been 
peculiarly  tenacious  on  this  subject.  Naturalization  in  this  coun- 
try may  sometimes  be  a  mere  cover ;  so  may,  and,  no  doubt,  fre- 
quently are,  burghers'  briefs.  But  the  case  of  Shattuck  is  accom- 
panied, with  so  many  corroborating  circumstances,  added  to  his 
brief,  as  to  render  it,  if  not  incontrovertibly  certain,  at  least,  an  un- 
fortunate case  on  which  to  rest  a  dispute  as  to  the  general  subject 
of  expatriation.  I  am  not  disposed  to  treat  lightly  the  attachment 
a  citizen  of  the  United  States  ought  to  bear  to  his  country.  There 
are  circumstances  in  which  a  citizen  ought  not  to  expatriate  him- 
self. He  never  should  be  considered  as  having  changed  his  alle- 
giance, if  mere  temporary  objects,  fraudulent  designs,  or  incom- 
plete change  of  domicil,  appear  in  proof.  If  there  are  any  such 
in  Shattuck's  case,  they  do  not  appear,  and  therefore.  I  must  take 
it  for  granted  that  they  do  not  exist.  That,  therefore,  the  ulti- 
mate destruction  of  his  vovage.  and  sale  of  his  cargo,  are  illegal. 

The  vessel  must  be  restored,  and  the  amount  of  sales  of  the 
cargo  paid  to  the  claimant,  or  his  lawful  agent,  together  with 
costs,  and  such  damages  as  shall  be  assessed  bv  the  clerk  of  this 
court,  who  is  hereby  directed  to  inquire  into  and  report  the  amount 
thereof.     And  for  this  purpose,  the  clerk  is  directed  to  associate 


MURRAY  V.  SCHOONER  CHARMING  BETSY  163 

with  himself  two  intelHgent  merchants  of  this  district,  and  duly 
inquire  what  damage  Jared  Shattuck,  the  owner  of  the  schooner 
Charming  Betsy  and  her  cargo,  hath  sustained,  by  reason  of 
the  premises.  Should  it  be  the  opinion  of  the  clerk,  and  the  asses- 
sors associated  with  him  that  the  officers  and  crew  of  the  Con- 
stellation benefited  the  owner  of  The  Charming  Betsy,  by  the 
rescue  from  the  French  captors,  they  should  allow  in  the  adjust- 
ment, reasonable  compensation  for  this  service. 

(Signed)     Richard   Peters. 
28th  April,  1801. 

On  the  15th  of  May  following,  upon  the  report  of  the  clerk  and 
assessors,  a  final  decree  was  entered  for  $20,594.16  damages,  with 
costs.  From  this  decree,  the  libellant  appealed  to  the  circuit  court, 
who  adjudged,  "that  the  decree  of  the  district  court  be  affirmed,  so 
far  as  it  directs  restitution  of  the  vessel,  and  payment  to  the  claimant 
of  the  net  proceeds  of  the  sale  of  the  cargo  in  Martinique,  deducting 
the  costs  and  charges  there,  according  to  the  account  exhibited  by 
Captain  Murray's  agent,  being  one  of  the  exhibits  in  this  cause :  and 
that  the  said  decree  be  reversed  for  the  residue,  each  party  to  pay  his 
own  costs,  and  one  moiety  of  the  custody  and  wharfage  bills  for  keep- 
ing the  vessel  until  restitution  to  the  claimant."  From  this  decree, 
both  parties  appealed  to  the  supreme  court. 

The  cause  was  argued,  at  last  term,  by  Martin,  Key  and  Mason,  for 
the  claimant.    No  counsel  was  present  for  the  libellant. 

For  the  claimant  it  was  contended  that  the  sale  of  the  schooner  to 
Shattuck  was  bona  fide,  and  that  he  was  a  Danish  subject.  That 
although  she  was  in  possession  of  French  mariners,  she  was  not  an 
armed  French  vessel,  within  the  acts  of  congress,  which  authorized 
the  capture  of  such  vessels.  That  neutrals  are  not  bound  to  take  notice 
of  hostilities  between  two  nations,  unless  war  has  been  declared :  that 
the  right  of  search  and  seizure  is  incident  only  to  a  state  of  war.  That 
neutrals  are  not  bound  to  take  notice  of  our  municipal  regulations: 
that  the  non-intercourse  act  was  simply  a  municipal  regulation,  bind- 
ing only  upon  our  own  citizens,  and  had  nothing  to  do  with  the  law  of 
nations;  it  could  give  no  right  to  search  a  neutral.  That  in  all  cases 
where  a  seizure  is  made  under  a  municipal  law,  probable  cause  is  no 
justification,  unless  it  is  made  so  by  the  municipal  law  under  which 
the  seizure  is  made. 

As  to  tlie  position  that  the  sale  was  bona  Me,  the  counsel  for  the 
claimant  relied  on  the  evidence,  which  came  up  with  the  transcript  of 


164  JUDGMENTS  OF  THE  SUPREME  COURT 

the  record,  which  was  very  strong  and  satisfactory.  Upon  the  ques- 
tion whether  Shattuck  was  a  Danish  subject,  or  a  citizen  of  the  United 
States,  it  was  said  that  although  he  was  born  in  Connecticut,  yet  there 
was  no  evidence  that  he  had  ever  resided  in  the  United  States,  since 
their  separation  from  Great  Britain.  But  it  appears  by  the  testimony 
that  he  resided  in  St.  Thomas,  during  his  minority,  and  served  his 
apprenticeship  there.  That  he  had  married  into  a  family  in  that  island ; 
had  resided  there  ever  since  the  year  1789;  had  complied  with  the  laws 
which  enabled  him  to  become  a  burgher,  and  had  carried  on  business 
as  such,  and  had  for  some  years,  been  the  owner  of  vessels  and  lands. 
Even  if,  by  birth,  he  had  been  a  citizen  of  the  United  States,  he  had 
a  right  to  expatriate  himself.  He  had,  at  least,  the  whole  time  of  his 
minority  in  which  to  make  his  election  of  what  country  he  would 
become  a  citizen.  Every  citizen  of  the  United  States  has  a  right  to 
expatriate  himself  and  become  a  citizen  of  any  other  country  which 
he  may  prefer,  if  it  be  done  with  a  bona  Ude  and  honest  intention,  at 
a  proper  time,  and  in  a  public  manner.  While  we  are  inviting  all  the 
people  of  the  earth  to  become  citizens  of  the  United  States,  it  surely 
does  not  become  us  to  hold  a  contrary  doctrine,  and  deny  a  similar 
choice  to  our  own  citizens.  Circumstances  may,  indeed,  show  the  in- 
tention to  be  fraudulent  and  collusive,  and  merely  for  the  purpose  of 
illicit  trade,  etc.  But  such  circumstances  do  not  appear  in  the  present 
case.  Shattuck  was  fairly  and  bona  Ude  domiciliated  at  St.  Thomas 
before  our  disputes  arose  with  France.  The  act  of  Congress,  "further 
to  suspend,"  etc.,  can  not,  therefore,  be  considered  as  operating  upon 
such  a  person.  The  first  act  to  suspend  the  intercourse  was  passed 
on  the  13th  of  June,  1798  (1  U.  S.  Stat.  565),  and  expired  with  the 
end  of  the  next  session  of  Congress.  The  next  act,  "further  to  sus- 
pend," etc.,  was  passed  on  the  9th  of  February,  1799  {ibid.  613),  and 
expired  on  the  3d  of  March,  1800.  The  act  upon  which  the  present 
libel  is  founded,  and  which  has  the  same  title  with  the  last,  was  passed 
on  the  27th  of  February,  1800  (2  ibid.  7).  All  the  acts  are  confined 
in  their  operations  to  persons  resident  within  the  United  States,  or 
under  their  protection. 

She  was  not  such  an  armed  French  vessel  as  comes  within  the 
description  of  those  acts  of  Congress,  which  authorized  the  hostilities 
with  France.  She  had  only  one  musket,  twelve  ounces  of  powder,  and 
twelve  ounces  of  lead.  The  only  evidence  of  other  arms  arises  from 
the  deposition  of  one  McFarlan.     But  he  did  not  go  on  board  of  her 


MURRAY  V.  SCHOONER  CHARMING  BETSY  165 

until  some  days  after  the  capture,  and  his  deposition  is  inadmissible 
testimony,  because  he  was  entitled  to  a  share  of  the  prize-money,  if 
the  vessel  should  be  condemned;  and  although  a  release  from  him  to 
Captain  Murray  appears  among  the  papers,  yet  that  release  was  not 
made,  until  after  the  deposition  was  taken ;  and  the  fact  is  expressly 
contradicted  by  other  testimony.  The  mere  possession,  by  nine  French- 
men, did  not  constitute  her  an  armed  vessel.  She  was  unable  to  annoy 
the  commerce  of  the  United  States,  which  was  the  reason  of  the 
adjudication  of  this  court,  in  the  case  of  The  Amelia.  (See  Talbot  v. 
Seeman,  1  Cr.  1.)  The  proces  verbal  is  no  evidence  of  any  fact  but 
its  own  existence.  If  she  had  arms,  they  ought  to  have  been  brought 
in,  as  the  only  competent  evidence  of  that  fact.  No  arms  are  libelled, 
and  none  appear,  by  the  account  of  sales,  to  have  been  sold  in  Mar- 
tinique. 

It  being,  then,  a  neutral  unarmed  vessel.  Captain  Murray  had  no 
right  to  seize  and  send  her  in.  A  right  to  search  a  neutral  arises  only 
from  a  state  of  public  known  war,  and  not  from  a  municipal  regula- 
tion. In  time  of  peace,  the  flag  is  to  be  respected.  Until  war  is  de- 
clared, neutrals  are  not  bound  to  take  notice  of  it. 

The  decrees  of  both  the  courts  below  have  decided  that  the  vessel 
was  not  liable  to  capture.  The  only  question  is,  whether  the  claimant 
is  entitled  to  damages?  Captain  Murray  has  libelled  her  upon  the 
non-intercourse  act.  He  does  not  state  that  he  seized  her,  because  she 
was  a  French  armed  vessel,  although  he  states  her  to  be  armed,  at  the 
time  of  capture.  It  has  also  been  decided  by  both  the  courts  that  she 
is  Danish  property.  If  an  American  vessel  had  been  illegally  captured 
by  Captain  Murray,  he  would  have  been  liable  for  damages ;  a  fortiori 
in  the  case  of  a  foreign  vessel  where,  from  motives  of  public  policy. 
our  conduct  ought  not  only  to  be  just  but  liberal. 

In  cases  of  personal  arrest,  if  no  crime  has  in  fact  been  committed, 
probable  cause  is  not  a  justification,  unless  it  be  made  so  by  municipal 
law.  As  in  the  case  of  hue  and  cry,  he  who  raises  it  is  liable,  if  it 
be  false.  If  the  sheriff  has  a  writ  against  A,  and  B  is  shown  to  him 
as  the  person,  and  he  arrests  B  instead  of  A,  he  is  liable  to  an  action 
of  trespass  at  the  suit  of  B.  (Wale  v.  Hill,  1  Bulst.  149.)  So,  if  he 
replevies  wrong  goods,  or  takes  the  goods  of  one,  upon  a  H.  fa.  against 
another.  In  these  cases,  it  is  no  justification  to  the  officer,  that  he 
was  informed,  or  believed,  he  was  right.  He  must  in  all  cases  seize  at 
his  peril.     So  it  is  with  all  other  officers,  such  as  those  of  the  revenue, 


166  JUDGMENTS  OF  THE  SUPREME  COURT 

etc.,  probable  cause  is  not  sufficient  to  justify,  unless  the  law  makes  it 
a  justification.  If  the  information  is  at  common  law,  for  the  thing 
seized,  and  the  seizure  is  found  to  have  been  illegally  made,  the  in- 
jured party  must  bring  his  action  of  trespass ;  but  by  the  course  of  the 
admiralty,  the  captor,  being  in  court,  is  liable  to  a  decree  against  him 
for  damages.  The  Fabius,  2  Rob.,  202.  The  case  of  IVaie  v.  Hill, 
in  1  Bulst.  149,  shows  that  where  a  crime  has  not  been  committed, 
there,  probable  cause  can  be  no  justification.  But  where  a  crime  has 
been  committed,  the  party  arresting  can  not  justify  by  the  suspicion  of 
others ;  it  must  be  upon  his  own  suspicion. 

In  the  case  of  Fapillon  v.  Buckner,  Hardr.  478,  although  the  goods 
seized  had  been  condemned  by  the  commissioners  of  excise,  yet  it  was 
not  held  to  be  a  good  justification.  In  Purviance  v.  Angus,  1  Dall. 
182,  it  was  held  that  an  error  in  judgment  would  not  excuse  an  illegal 
capture;  and  in  Leglise  v.  Champante,  2  Str.  820,  it  is  adjudged  that 
probable  cause  of  seizure  will  not  justify  the  officer.^ 

In  3  Anstr.  896,  is  a  case  of  seizure  of  hides,  where  no  provision 
was  made  in  the  law  that  probable  cause  should  be  a  justification. 
This  case  cites  Pickering  v.  Truste,  7  T.  R.  53.  For  what  reason  do 
the  revenue  laws  provide  that  probable  cause  shall  be  a  justification, 
if  it  would  be  so,  without  such  a  provision?  In  these  cases,  the  injury 
by  improper  seizures  can  be  but  small  compared  with  those  which 
might  arise  under  the  non-intercourse  law.  Great  Britain  has  never 
made  probable  cause  an  excuse  for  seizing  a  neutral  vessel  for  violating 
her  municipal  laws.  A  neutral  vessel  is  only  liable  to  your  municipal 
regulations,  while  in  your  territorial  jurisdiction ;  but  as  soon  as  she 
gets  to  sea,  you  have  lost  your  remedy:  you  can  not  seize  her  on  the 
high  seas.  Even  in  Great  Britain,  if  a  vessel  gets  out  of  the  jurisdic- 
tion of  one  court  of  admiralty,  she  can  not  be  seized  in  another.  It  is 
admitted  that  a  law  may  be  passed  authorizing  such  a  seizure,  but 


1  The  Ch.  J.  observed,  that  this  case  was  overruled  two  years  afterwards,  in 
a  case  cited  in  a  note  to  Gwillim's  edition  of  Bac.  Abr.^  The  case  cited  in  the 
note  is  from  12  Vin.  173,  tit.  evidence,  P.  b.  6,  in  which  it  is  said  "that  Lord 
Ch.  Baron  Bury,  Montague  and  Page,  against  Price,  held  that  where  an  officer 
had  made  a  seizure,  and  there  was  an  information  upon  it,  etc.,  which  went  in 
favour  of  the  party  who  afterwards  brings  trespass ;  the  shewing  these  pro- 
ceedings was  sufficient  to  excuse  the  officer :  It  was  competent  to  make  out  a 
probable  cause  for  his  doing  the  act.     Mich.  6.  Geo." 

2  The  case  of  Leglise  v.  Champante  was  in  2  Geo.  II.  That  cited  in  the  note 
to  Bac.  ab.  referred  to  by  the  Ch.  J.  was  in  6  Geo.  I.  The  mistake  arises  from 
the  note  in  Gwillim's  edition  not  mentioning  the  date  of  the  case  cited  from 
Viner. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  167 

then  it  becomes  a  question  between  the  two  nations.  If  the  present 
circumstances  are  sufficient  to  raise  a  probable  cause  for  the  seizure, 
and  if  such  probable  cause  is  a  justification,  it  will  destroy  the  trade 
of  the  Danish  islands.  The  inhabitants  speak  our  language,  they  buy 
our  ships,  etc.  It  will  be  highly  injurious  to  the  interests  of  the  United 
States;  and  this  court  will  consider  what  cause  of  complaint  it  would 
furnish  to  the  Danish  nation.  If  a  private  armed  vessel  had  made 
this  seizure,  the  captain  and  owners  would  have  been  clearly  liable  on 
their  bond,  which  the  law  obliges  them  to  give.  The  object  of  this 
act  of  Con,gress  was  more  to  prevent  our  vessels  falling  into  the 
hands  of  the  French  than  to  make  it  a  war  measure,  by  starving  the 
French  islands. 

Even  if  a  Danish  vessel  should  carry  American  papers  and  Amer- 
ican colors,  it  would  be  no  justification.  In  a  state  of  peace,  we  have 
no  right  to  say  they  shall  not  use  them,  if  they  please.  In  time  of 
war,  double  papers,  or  throwing  over  papers,  are  probable  causes  of 
seizure,  but  this  does  not  alter  the  property;  it  is  no  cause  of  condem- 
nation.   The  vessel  is  to  be  restored,  but  without  damages. 

The  mode  of  ascertaining  the  damages  adopted  by  the  district  court, 
is  conformable  to  the  usual  practice  in  courts  of  admiralty.  See  Mar- 
riott's Rep.,  and  in  the  same  book,  p.  184,  in  the  case  of  The  Vamderlee, 
liberal  damages  were  given. 

In  the  revenue  laws  of  the  United  States,  vol.  4,  p.  391,  probable 
cause  is  made  an  excuse  for  the  seizure ;  but  no  such  provision  is,  or 
ought  to  have  been,  made  in  the  non-intercourse  law.  The  powers 
given  were  so  liable  to  abuse  that  the  commander  ought  to  act  at  his 
peril. 

The  Chief  Justice  mentioned  the  case  of  The  Sally,  Captain  Joy,  in 
2  Rob.  185  (Amer.  edit.),  where  a  court  of  vice-admiralty  had  decreed, 
in  a  revenue  case,  that  there  was  no  probable  cause  of  seizure. 

This  cause  came  on  again  to  be  argued,  at  this  term,  by  Dallas,  for 
the  libellant,  and  Martin  and  Key,  for  the  claimant. 

Dallas,  as  a  preliminary  remark,  observed,  that  the  judge  of  the  dis- 
trict court  had  referred  to  the  clerk  and  his  associates  to  ascertain 
whether  any  and  what  salvage  should  be  allowed.  This  was  an  im- 
proper delegation  of  his  authority,  not  warranted  by  the  practice  of 
courts  of  admiralty,  nor  by  the  nature  of  his  office.  Although  they 
had  not  reported  upon  this  point,  yet  he  submitted  it  to  the  court  for 
their  consideration. 


168  JUDGMENTS  OF  THE  SUPREME  COURT 

After  stating  the  facts  which  appeared  upon  the  record,  and  such 
as  were  either  admitted  or  proved,  he  divided  his  argument  into  three 
general  points. 

1.  That  Jared  Shattucic  was  a  citizen  of  the  United  States  at  the 
time  of  capture  and  recapture ;  and  therefore,  the  vessel  was  subject 
to  seizure  and  condemnation,  under  the  act  of  Congress  usually  called 
the  non-intercourse  act. 

2.  That  she  was  in  danger  of  condemnation  by  the  French,  and 
therefore,  if  not  liable  to  condemnation  under  the  act  of  Congress, 
Captain  Murray  was  at  least  entitled  to  salvage. 

3.  That  if  neither  of  the  two  former  positions  can  be  maintained, 
yet  Captain  Murray  had  probable  cause  to  seize  and  bring  her  in,  and 
therefore,  he  ought  not  to  be  decreed  to  pay  damages. 

I.  The  vessel  was  liable  to  seizure  and  condemnation  under  the  non- 
intercourse  act;  Shattuck  being  a  citizen  of  the  United  States  at  the 
time  of  recapture.  Captain  Murray's  authority  to  capture  The  Charm- 
ing Betsy  depends  upon  the  municipal  laws  of  the  United  States,  ex- 
pounded by  his  instructions,  and  the  law  of  nations.  Before  the  non- 
intercourse  act,  measures  had  been  taken  by  Congress  to  prevent  and 
repel  the  injuries  to  our  commerce  which  were  daily  perpetrated  by 
French  cruisers.  By  the  act  of  28th  May,  1798  (1  U.  S.  Stat.  561), 
authority  was  given  to  capture  "armed  vessels  sailing  under  authority, 
or  pretense  of  authority,  from  the  republic  of  France,"  etc.,  and  to 
retake  any  captured  American  vessel.  The  act  of  28th  June,  1798 
{ibid.  574),  regulates  the  proceedings  against  such  vessels,  when  cap- 
tured, ascertains  the  rate  of  salvage  for  vessels  recaptured,  and  pro- 
vides for  the  confinement  of  prisoners,  etc.  The  act  of  July  9th,  1798 
{ibid.  578),  authorizes  the  capture  of  armed  French  vessels  anywhere 
upon  the  high  seas,  and  provides  for  the  granting  commissions  to  pri- 
vate armed  vessels,  etc. 

The  right  to  retake  an  armed  or  unarmed  neutral  vessel,  in  the  hands 
of  the  French,  is  nowhere  expressly  given ;  but  is  an  incident  growing 
out  of  the  state  of  war ;  and  is  implied  in  several  acts  of  Congress. 
This  was  decided  in  the  case  of  Talbot  v.  Seeman,  in  this  court,  at 
August  term,  1801  (1  Cr.  33).  The  right  of  recapture,  carrying  with 
it  the  right  of  salvage,  gave  the  right  of  bringing  into  port ;  and  that 
port  must  be  a  port  of  the  captor. 

The  first  non-intercourse  act  was  passed  June  13th,  1798  (1  U.  S. 
Stat.   565)  ;  a  similar  act  was  passed  February  9th,  1799  {ibid.   613). 


MURRAY  V.  SCHOONER  CHARMING  BETSY  169 

The  act  upon  which  the  present  Hbel  is  founded  was  passed  February 
27th,  1800  (2  ibid.  7).  These  are  not  to  be  considered  as  mere  muni- 
cipal laws  for  the  regulation  of  our  own  commerce,  but  as  a  part  of 
the  war  measures  which  it  was  found  necessary  at  that  time  to  adopt. 
It  was,  quoad  hoc,  tantamount  to  a  declaration  of  war. 

Happily,  there  is  not,  and  has  not  been,  in  the  practice  of  our  gov- 
ernment, an  established  form  of  declaring  war.  Congress  have  the 
power,  and  may,  by  one  general  act,  or  by  a  variety  of  acts,  place  the 
nation  in  a  state  of  war.  So  far  as  Congress  have  thought  proper  to 
legislate  us  into  a  state  of  war,  the  law  of  nations  in  war  is  to  apply. 
By  the  general  laws  of  war,  a  belligerent  has  a  right  not  only  to  search 
for  her  enemy,  but  for  her  citizens  trading  with  her  enemy.  If  author- 
ities for  this  position  were  necessary,  a  variety  of  cases  decided  by  Sir 
William  Scott  might  be  cited. 

As  to  the  present  case,  France  was  to  be  considered  as  our  enemy. 
The  non-intercourse  act  of  1800  prohibits  all  commercial  intercourse 
"between  any  person  or  persons  resident  within  the  United  States,  or 
under  their  protection,  and  any  person  or  persons  resident  within  the 
territories  of  the  French  Republic,  or  any  of  the  dependencies  thereof." 
And  declares  that  "any  ship  or  vessel,  owned,  hired  or  employed,  in 
whole  or  in  part,  by  any  person  or  persons  resident  within  the  United 
States,  or  any  citizen  or  citizens  thereof,  resident  elsewhere,"  etc., 
"shall  be  forfeited,  and  may  be  seized  and  condemned."  A  citizen  of 
the  United  States,  resident  "elsewhere,"  must  mean  a  citizen  resident 
in  a  neutral  country.  If  Shattuck  was  such  a  citizen,  the  case  is  clearly 
within  the  statute.  It  is  not  necessary  that  the  vessel  should  be  regis- 
tered as  an  American  vessel ;  it  is  sufficient,  if  owned  by  a  citizen  of 
the  United  States :  registering  is  only  necessary  to  give  the  vessel  the 
privileges  of  an  American  bottom.  Nor  is  it  necessary  that  she  should 
have  been  built  in  the  United  States. 

By  the  8th  section  of  the  act  of  27th  February,  1800  (2  U.  S.  Stat. 
10),  reasonable  suspicion  is  made  a  justification  of  seizure,  and  send- 
ing in  for  adjudication.  The  officer  is  bound  to  act  upon  suspicion, 
and  that  suspicion  applies  both  to  the  character  of  the  vessel,  and  to 
the  nature  of  the  voyage.  Although  the  act  of  Congress  mentions  only 
vessels  of  the  United  States,  still,  from  the  nature  of  the  case,  the 
right  to  seize  and  send  in  must  extend  to  apparent  as  well  as  real 
American  vessels. 

Such  is  the  contemporaneous  exposition  given  by  the  instructions 


170  JUDGMENTS  OF  THE  SUPREME  COURT 

of  the  executive.^  The  words  of  these  instructions  are:  "You  are  not 
only  to  do  all  that  in  you  lies,  to  prevent  all  intercourse,  whether  direct 
or  circuitous,  between  the  ports  of  the  United  States  and  those  of 
France  and  her  dependencies,  in  cases  where  the  vessels  or  carg-oes  are 
apparently,  as  well  as  really  American,  and  protected  by  American 
papers  only,  but  you  are  to  be  vigilant  that  vessels  or  cargoes,  really 
American,  but  covered  by  Danish  or  other  foreign  papers,  and  bound 
to  or  from  French  ports,  do  not  escape  you."  The  law  and  the  in- 
structions having  thus  made  it  his  duty  to  act  on  reasonable  suspi- 
cion, he  must  be  safe,  though  the  ground  of  suspicion  should  eventually 
be  removed. 

Under  our  municipal  law,  therefore,  the  following  propositions  are 
maintainable:  1.  That  a  vessel  captured  by  the  French,  sails  under 
French  authority ;  and  if  armed,  is,  quoad  hoc,  a  French  armed  vessel. 
The  degree  of  arming  is  to  be  tested  by  the  capacity  to  annoy  the 
unarmed  commerce  of  the  United  States.  2.  The  right  to  recapture 
an  unarmed  neutral  is  an  incident  of  the  war,  and  implied  in  the  regu- 
lations of  Congress.  3.  The  non-intercourse  law  justifies  the  seizure 
of  apparent,  as  well  as  of  real  American  vessels. 

Nor  does  this  doctrine  militate  with  the  law  of  nations.  A  war,  in 
fact,  existed  between  the  United  States  and  France.  An  army  was 
raised,  a  navy  equipped,  treaties  were  annulled,  the  intercourse  was 
prohibited,  and  commissions  were  granted  to  private  armed  vessels. 
Every  instrument  of  war  was  employed ;  but  its  operation  was  con- 
fined to  the  vessels  of  war  of  France  upon  the  high  seas.  So  far  as 
the  war  was  allowed,  the  laws  of  war  attached. 

That  it  was  a  public  war,  was  decided  in  the  case  of  Bas  v.  Tingy, 
in  this  court,  February  term,  1800  (4  Dall.  37).  No  authorities  are 
necessary  to  show  that  a  state  of  war  may  exist  without  a  public 
declaration.  And  the  right  to  search  follows  the  state  of  war.  Vattel, 
lib.  3,  c.  7,  §  114;  The  Maria,  1  Rob.  304;  Garrels  v.  Kensington,  8 
T.  R.  234.  Whether  the  vessel  was  American  or  Danish,  she  was 
taken  out  of  the  hands  of  our  enemy. 


^  Upon  Mr.  Dallas's  offering  to  read  the  instructions, 

Chase,  J.,  said  he  was  always  against  reading  the  instructions  of  the  execu- 
tive; because  if  they  go  no  further  than  the  law,  they  are  unnecessary;  if  they 
exceed  it,  they  are  not  warranted. 

Marshall,  Ch.  J.  I  understand  it  to  be  admitted  by  both  parties,  that  the 
instructions  are  part  of  the  record.  The  construction,  or  the  effect  they  are 
to  have,  will  be  the  subject  of  further  consideration.     They  may  be  read. 

Chase,  J.  I  can  only  say,  I  am  against  it,  and  I  wish  it  to  be  generally 
known.     I  think  it  a  bad  practice,  and  shall  always  give  my  voice  against  it. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  171 

The  law  of  nations  in  war  gives  not  only  the  right  to  search  a  neutral, 
but  a  right  to  recapture  from  the  enemy.  On  this  point,  the  case  of 
Talbot  V.  Secman  is  decisive,  both  as  to  the  law  of  nations,  and  as  to 
the  acts  of  Congress,  and  that  the  rule  applies  as  well  to  a  partial  as 
to  a  general  war.  Captain  Murray's  authority,  then,  was  derived,  not 
only  from  our  municipal  law,  and  his  instructions,  but  from  the  law 
of  nations.  If  he  has  pursued  his  authority  in  an  honest  and  reason- 
able manner,  although  he  may  not  be  entitled  to  reward,  yet  he  can  not 
deserve  punishment. 

It  remains  to  consider  whether  the  vessel  was,  in  fact,  liable  to  seiz- 
ure and  condemnation.  What  were  the  general  facts  to  create  sus- 
picion at  the  time?  1.  The  vessel  was  originally  American.  The 
transfer  was  recent,  and  since  the  non-intercourse  law.  The  voyage 
was  to  a  dependency  of  the  French  Republic,  and  therefore  prohibited, 
if  she  was  really  an  American  vessel.  2.  The  owner  was  an  American 
by  birth.  The  master  was  a  Scotchman.  The  crew  were  not  Danes, 
but  chiefly  Americans,  who  came  from  Baltimore.  3.  The  proces  verbal 
calls  her  an  American  vessel ;  which  was  corroborated  by  the  declara- 
tions of  some  of  the  crew.  4.  The  practice  of  the  inhabitants  of  the 
Danish  islands  to  cover  American  property  in  such  voyages. 

What  was  there,  then,  to  dispel  the  cloud  of  suspicion,  raised  by 
these  circumstances?  1.  The  declarations  of  Wright,  the  master,  whose 
testimony  was  interested,  inconsistent  with  itself,  and  contradicted  by 
others.    2.  The  documents  found  on  board. 

These  were  no  other  than  would  have  been  found,  if  fraud  had  been 
intended.  These  were,  1.  The  sea-letter  or  pass  from  the  governor- 
general  of  the  Danish  islands,  who  did  not  reside  at  St.  Thomas,  but 
at  St.  Croix.  It  states  only  by  way  of  recital  that  the  vessel  was  the 
property  of  Jared  Shattuck,  a  burgher  and  inhabitant  of  St.  Thomas. 
It  does  not  state  that  he  was  naturalized  or  a  subject  of  Denmark. 
2.  The  muster-roll,  which  states  the  names  and  number  of  the  master 
and  crew,  who  were  ten  besides  the  captain,  viz.,  William  Wright, 
master;  David  Weems,  John  Robinson,  Jacob  Davidson,  John  Lampey, 
John  Nicholas,  Frederick  Jansey,  George  Williamson,  William  George, 
Prudentio,  a  Corsican,  and  Davy  Johnson,  a  Norwegian.  There  is  but 
one  foreign  name  in  the  whole.  Wright,  in  his  deposition,  says  that 
three  were  Americans,  one  a  Norwegian,  and  the  rest  were  Danes. 
Dutch  and  Spaniards.  The  muster-roll  was  not  on  oath,  but  was  the 
mere  declaration  of  the  owner.     3.  The  invoice,  which  only  says  that 


172  JUDGMENTS  OF  THE  SUPREME  COURT 

Shattuck  was  the  owner  of  the  cargo.  4.  The  bill  of  lading,  which 
says  that  he  was  the  shipper.  5.  The  certificate  of  the  oath  of  prop- 
erty of  the  cargo,  states  only  by  way  of  recital,  that  Shattuck,  a 
burgher,  inhabitant  and  subject,  etc.,  was  the  owner  of  the  cargo,  but 
says  nothing  of  the  property  in  the  vessel.  By  comparing  this  cer- 
tificate with  the  oath  itself,  it  appears  that  the  word  "subject"  has  been 
inserted  by  the  officer,  and  was  not  in  the  original  oath.  6.  Shattuck's 
instructions  to  Captain  Wright.  7.  The  bill  of  sale  by  Phillips,  the 
agent  of  the  American  owners,  to  Shattuck;  but  his  authority  to  make 
the  sale  was  not  on  board. 

To  show  what  little  credit  such  documents  are  entitled  to,  he  cited 
the  opinion  of  Sir  W.  Scott,  in  the  case  of  The  Vigilantia,  1  Rob. 
6-8  (Amer.  ed.),  and  in  the  case  of  The  Odin,  {ibid.  208-211).  The 
whole  evidence  on  board  was  a  mere  custom-house  affair,  all  depend- 
ing upon  his  own  oath  of  property.  His  burgher's  brief  was  not  on 
board,  nor  did  it  appear,  even  by  his  own  oath,  that  Shattuck  was  a 
burgher.  And  no  document  is  yet  produced  in  which  he  undertakes 
to  swear  that  he  is  a  Danish  subject.  Such  documents  could  not  re- 
move a  reasonable  suspicion  founded  upon  such  strong  facts.  There 
could  never  be  a  seizure  upon  suspicion,  if  this  was  not  warrantable 
at  the  time. 

What  has  appeared  since,  to  remove  the  suspicion,  and  to  prove 
Shattuck  to  be  a  Danish  subject?  All  the  original  facts  remain,  and 
the  case  rests  on  Shattuck's  expatriation,  whence  arise  two  inquiries: 
1.  As  to  the  right,  in  point  of  law,  to  expatriate.  2.  As  to  the  exercise 
of  the  right,  in  fact. 

1.  As  to  the  right  of  expatriation.  He  was  a  native  of  Connecticut, 
and  for  aught  that  appears  in  the  record,  remained  here  until  the  year 
1789,  when  we  first  hear  of  him  in  the  island  of  St.  Thomas.  This 
was  after  the  revolution,  and  therefore,  there  can  be  no  question  as  to 
election,  at  least,  there  is  no  proof  of  his  election  to  become  a  subject 
of  Denmark. 

If  the  account  of  the  case  of  Isaac  Williams,  1  Tuck.  Bl.,  part  1, 
App.  p.  436,^  is  correct,  it  was  the  opinion  of  Ch.  J.  Ellsworth,  that  a 


1  The  state  of  the  case  and  the  opinion  of  Ch.  J.  Ellsworth,  as  extracted  by 
Judge  Tucker  from  "The  National  Magazine,"  No.  3,  p.  254,  are  as  follows : 

On  the  trial  of  Isaac  Williams  in  the  District  (qu.  Circuitf)  Court  of  Con- 
necticut, Feb.  27,  1797,  for  accepting  a  commission  under  the  French  Republic, 
and  under  the  authority  thereof  committing  acts  of  hostility  against  Great 
Britain,  the  defendant  alleged,  and  offered  to  prove,  that  he  had  expatriated 
himself  from,  the  United  States  and  become  a  French  citizen  before  the  com- 


MURRAY  V.  SCHOONER  CHARMING  BETSY  173 

citizen  of  the  United  States  could  not  expatriate  himself.  That  learned 
judge  is  reported  to  have  said  in  that  case,  that  the  common  law  of 
this  country  remains  the  same  as  it  was  before  the  revolution.  But  in 
the  case  of  Talbot  v.  Jansen,  3  Dall.  133,  this  court  inclined  to  the 
opinion  that  the  right  exists,  but  the  difficulty  was,  that  the  law  had 
not  pointed  out  the  mode  of  election  and  of  proof. 

It  must  be  admitted,  that  the  right  does  exist,  but  its  exercise  must 
be  accompanied  by  three  circumstances :  1.  Fitness  in  point  of  time. 
2.  Fairness  of  intent.    3.  Publicity  of  the  act. 

But  the  right  of  expatriation  has  certain  characteristics,  which  dis- 
tinguish it  from  a  locomotive  right,  or  a  right  to  change  the  domicil. 
By  expatriation,  the  party  ceases  to  be  a  citizen  and  becomes  an  alien. 
If  he  would  again  become  a  citizen,  he  must  comply  with  the  terms 
of  the  law  of  naturalization  of  the  country,  although  he  was  a  native. 

mencement  of  the  war  between  France  and  England.  This  produced  a  question 
as  to  the  right  of  expatriation,  when  Judge  Ellsworth,  then  Chief  Justice  of 
the  United  States,  is  said  to  have  dehvered  an  opinion  to  the  following  effect. 

"The  common  law  of  this  country  remains  the  same  as  it  was  before  the 
revolution.  The  present  question  is  to  be  decided  by  two  great  principles ;  one 
is,  that  all  the  members  of  a  civil  community  are  bound  to  each  other  by  com- 
pact; the  other  is,  that  one  of  the  parties  to  this  compact  can  not  dissolve  it 
by  his  own  act.  The  compact  between  our  community  and  its  members  is, 
that  the  community  shall  protect  its  members ;  and  on  the  part  of  the  mem- 
bers, that  they  will  at  all  times  be  obedient  to  the  laws  of  the  community  and 
faithful  to  its  defense.  It  necessarily  results  that  the  member  can  not  dissolve 
the  compact  without  the  consent,  or  default  of  the  community.  There  has 
been  no  consent,  no  default.  Express  consent  is  not  claimed ;  but  it  is  argued 
that  the  consent  of  the  community  is  implied,  by  its  policy,  its  condition,  and 
its  acts.  In  countries  so  crowded  with  inhabitants  that  the  means  of  sub- 
sistence are  difficult  to  be  obtained,  it  is  reason  and  policy  to  permit  emigra- 
tion;  but  our  policy  is  different,  for  our  country  is  but  scarcely  settled,  and 
we  have  no  inhabitants  to  spare.  Consent  has  been  argued  from  the  condition 
of  the  country,  because  we  are  in  a  state  of  peace.  But  though  we  were  in 
peace,  the  war  had  commenced  in  Europe ;  we  wished  to  have  nothing  to  do 
with  the  war — but  the  war  would  have  something  to  do  with  us.  It  has  been 
difficult  for  us  to  keep  out  of  the  war — the  progress  of  it  has  threatened  to 
involve  us.  It  has  been  necessary  for  our  government  to  be  vigilant  in  restrain- 
ing our  own  citizens  from  those  acts  which  would  involve  us  in  hostilities. 

The  most  visionary  writers  on  this  subject  do  not  contend  for  the  principle 
in  the  unlimited  extent,  that  a  citizen  may  at  any,  and  at  all  times,  renounce 
his  own,  and  join  himself  to  a  foreign  country. 

Consent  has  been  argued  from  the  acts  of  our  governrnent  permitting  the 
naturalization  of  foreigners.  When  a  foreigner  presents  himself  here,  we  do 
not  inquire  what  his  relation  is  to  his  own  country ;  we  have  not  the  means 
of  knowing,  and  the  inquiry  would  be  indelicate;  we  leave  him  to  judge  of 
that.  If  he  embarrasses  himself  by  contracting  contradictory  obligations,  the 
fault  and  folly  are  his  own  :  but  this  implies  no  consent  of  the  government  that 
our  own  citizens  should  also  expatriate  themselves.  It  is  therefore  my  opinion, 
that  these  facts  which  the  prisoner  offers  to  prove  in  his  defense,  are  totally 
irrelevant,"  etc.  The  prisoner  was  accoroingly  found  guilty,  fined  and  im- 
prisoned. 


174  JUDGMENTS  OF  THE  SUPREME  COURT 

But  by  a  mere  removal  to  another  country,  for  purposes  of  trade, 
whatever  privileges  he  may  acquire  in  that  country,  he  does  not  cease 
to  be  a  citizen  of  this. 

With  respect  to  other  parties  at  vi^ar,  the  place  of  domicil  determines 
his  character,  enemv  or  neutral,  as  to  trade.  But  with  respect  to  his 
own  country,  the  change  of  place  alone  does  not  justify  his  trading 
with  her  enemy ;  and  he  is  still  subject  to  such  of  her  laws  as  apply  to 
citizens  residing  abroad.  The  Hoop,  1  Rob.  165 ;  Gist  v.  Mason, 
1  T.  R.  84;  and  particularly  Potts  v.  Bell,  8  ibid.  548,  where  this 
principle  is  advanced  by  Doct.  NichoU,  the  king's  advocate,  in  p.  555, 
admitted  by  Doct.  Swabey,  in  p.  561,  and  decided  by  the  court. 

This  principle  of  general  law  is  fortified  by  the  positive  prohibition 
of  the  act  of  Congress.  In  France,  the  character  of  French  citizen 
remains,  until  a  naturalization  in  a  foreign  country.  In  the  United 
States,  we  require  an  oath  of  abjuration,  before  we  admit  a  person  to 
be  naturalized.  If  he  was  naturalized,  he  has  done  an  act  disclaiming 
the  protection  of  the  United  States,  and  is  no  longer  bound  to  his 
allegiance.  But  if  he  has  acquired  only  a  special  privilege  to  trade,  it 
must  be  subject  to  the  laws  of  his  country. 

2.  But  has  he,  in  fact,  exercised  the  right  of  expatriation  ?  And  is  it 
proved  by  legal  evidence?  His  birth  is  prima  facie  evidence  that  he 
is  a  citizen  of  the  United  States,  and  throws  the  burden  of  proof  upon 
him.  No  law  has  been  shown,  by  which  he  could  be  a  naturalized 
subject  of  Denmark,  nor  has  he  himself  ever  pretended  to  be  more 
than  a  burgher  of  St.  Thomas.  What  is  the  character  of  a  burgher, 
and  what  is  the  nature  of  a  burgher's  brief?  It  is  said  that  to  entitle 
a  person  to  own  ships,  there  must  have  been  a  previous  residence;  but 
no  residence  is  necessary  to  enable  a  man  to  be  a  master  of  a  Danish 
vessel.  It  is  a  mere  license  to  trade ;  a  permit  to  bear  the  flag  of  Den- 
mark ;  like  the  freedom  of  a  corporation.  It  implies  neither  expatria- 
tion, an  oath  of  allegiance,  nor  residence.  The  Argo,  1  Rob.  133 ; 
Pollard  V.  Bell,  8  T.  R.  434.  These  cases  show  with  what  facility  a 
man  may  become  a  burgher ;  that  it  is  a  mere  matter  of  purchase,  and 
that  it  is  a  character  which  may  be  taken  up  and  laid  aside  at  pleasure, 
to  answer  the  purposes  of  trade. 

But  there  is  no  evidence  that  he  ever  obtained  even  this  burgher's 
brief.  He  went  from  Connecticut,  a  lad,  an  apprentice  or  clerk,  in 
1788  or  1789:  he  was  not  seen  in  business  there  until  1795  or  1796. 
In  going,  in  1789,  he  had  no  motive  to  expatriate  himself,  as  there 


MURRAY  V.  SCHOONER  CHARMING  BETSY  175 

was  then  no  war.  We  find  him  first  trading  in  1796,  after  the  war, 
and  the  law  of  Denmark  forbids  a  naturalization  in  time  of  war.  At 
what  time,  then,  did  he  become  a  burgher?  If  he  ever  did  become 
such,  in  fact,  and  it  was  in  time,  he  can  prove  it  by  the  record. 
Wright's  burgher's  brief  is  produced,  and  shows  that  they  are  matters 
of  record.  The  brief  itself,  then,  or  a  copy  from  the  record,  duly 
authenticated,  is  the  best  evidence  of  the  fact,  and  is  in  the  power  of 
the  party  to  produce.  Why  is  it  withheld,  and  other  ex  parte  evidence 
picked  up  there,  and  witnesses  examined  here?  All  the  evidence  they 
have  produced  is  merely  matter  of  inference.  They  have  examined 
witnesses  to  prove  that  he  carried  on  trade  in  St.  Thomas,  owned  ships 
and  land,  married,  and  resided  there.  By  the  depositions,  they  prove 
that  a  man  is  not  by  law  permitted  to  do  these  things,  without  being 
a  burgher;  and  hence,  they  infer  his  burghership. 

These  facts  are  equivocal  in  themselves,  and  not  well  proved.  Cer- 
tificates of  citizenship  are  easily  obtained,  but  are  not  always  true.  This 
is  noticed  by  Sir  W.  Scott,  in  the  cases  before  cited.  A  case  hap- 
pened in  this  country,  United  States  v.  Villato,  2  Dall,  370;  where  a 
person  having  taken  the  oath  of  allegiance  to  Pennsylvania,  agreeable 
to  the  naturalization  act  of  that  State,  obtained  a  certificate  from  a 
magistrate,  confirmed  by  the  attestation  of  the  supreme  executive  of 
the  State,  that  he  was  a  citizen  of  the  United  States.  But  upon  a  trial 
in  the  circuit  court  of  Pennsylvania,  it  was  adjudged  that  he  was  not 
a  citizen.  Captain  Barney  also  went  to  France,  became  a  citizen,  took 
command  of  a  French  ship  of  war,  returned  to  this  country,  and  is  now 
certified  to  be  a  citizen  of  the  United  States.  So,  in  the  case  of  the 
information  against  the  ship  John  and  Alice,  Captain  Whitesides,  he 
was  generally  supposed  to  be  a  citizen  of  the  United  States.  On  the 
trial,  evidence  of  his  citizenship  was  called  for,  when  it  appeared  that 
his  father  brought  him  into  this  country  in  the  year  1784,  and  remained 
here  until  1792,  when  the  father  died.  Neither  he  nor  his  father  were 
naturalized,  and  the  vessel  was  condemned.  These  instances  show  the 
danger  of  crediting  such  custom-house  certificates. 

All  these  certificates,  in  the  present  case,  do  not  form  the  best  evi- 
dence, because  better  is  still  in  the  possession  of  the  party,  and  he 
ought  to  produce  it.  The  general  and  fundamental  rules  of  evidence 
are  the  same  in  courts  of  admiralty,  as  in  courts  of  common  law.  If 
they  appear  to  relax,  it  is  only  in  that  stage  of  the  business  where  they 
are  obliged  to  act  upon  suspicion.     In  the  present  case,  the  opinion  of 


176  JUDGMENTS  OF  THE  SUPREME  COURT 

merchants  only  is  taken  as  to  the  laws  of  Denmark.  No  judicial  char- 
acter, not  even  a  lawyer,  was  applied  to.  Certificates  of  merchants  are 
no  evidence  of  the  law.  The  Santa  Cruz,  1  Rob.  58.  The  evidence 
offered  is  both  ex  parte  and  ex  post  facto.  Fraud  is  not  to  be  pre- 
sumed, but  why  was  not  the  burgher's  brief  produced,  as  well  as  the 
other  papers,  such  as  the  oath  of  property,  etc.,  when  it  was  certainly 
the  most  important  paper  in  the  case?  The  only  reason  which  can  be 
given  is  that  it  did  not  exist.  It  was  a  case  like  that  of  Captain  White- 
sides,  where  people  were  led  into  a  mistake  from  the  length  of  his 
residence,  and  from  having  seen  him  there  from  the  time  of  his  youth. 

Upon  the  whole,  then,  we  have  a  right  to  conclude  that  Jared  Shat- 
tuck  was  not  a  Danish  subject;  or  that  if  he  was,  the  fact  is  not  proved, 
and  therefore  he  remains  a  citizen  of  the  United  States,  in  the  words 
of  the  act  of  Congress,  "residing  elsewhere."  The  consequence  must 
be  a  condemnation  of  the  vessel. 

II.  She  was  in  danger  of  condemnation  in  the  French  courts  of 
admiralty,  and  therefore  Captain  Murray  is  entitled  to  salvage.  This 
depends:  1.  On  the  right  to  retake;  2.  On  the  degree  of  danger;  and 
3.  The  service  rendered. 

1.  He  had  a  right  to  retake,  on  the  ground  of  suspicion  of  illicit 
trade,  in  violation  of  the  non-intercourse  law,  as  well  as  on  the  ground 
of  her  being  a  vessel  sailing  under  French  authority,  and  so  armed  as  to 
be  able  to  annoy  unarmed  American  vessels.  He  had  also  a  right  to 
bring  her  in  for  salvage,  if  a  service  was  rendered.  If  his  right  to 
retake  depends  upon  the  suspicion  of  illicit  trade,  or  upon  her  being  a 
French  armed  vessel,  he  could  take  her  only  into  a  port  of  the  United 
States. 

The  point  of  illicit  trade  has  already  been  discussed.  That  the  vessel 
was  sailing  under  French  authority  is  certain ;  the  only  question  is, 
whether  she  was  capable  of  annoying  our  commerce.  She  had  port- 
holes, a  musket,  powder  and  balls,  and  eight  Frenchmen,  who,  probably, 
as  is  usual,  had  each  a  cutlass.  Vessels  have  been  captured,  without  a 
single  musket;  three  or  four  cutlasses  are  often  found  sufficient.  The 
vessel  was  sufficiently  armed  to  justify  Captain  Murray,  under  his 
instructions,  in  bringing  her  in. 

If,  then,  the  taking  was  lawful,  has  she  been  saved  from  such  danger 
as  to  entitle  Captain  Murray  to  salvage?  There  is  evidence  that  Cap- 
tain Wright  requested  Captain  Murray  to  take  the  vessel,  to  prevent 
her  falling  into  the  hands  of  the  English.    He  consented  to  be  carried 


MURRAY  V.  SCHOONER  CHARMING  BETSY  177 

into  Martinique.  He  protested  only  against  the  privateer,  not  against 
Captain  Murray.  His  letter  to  Captain  Murray  does  not  complain  of 
the  recapture,  but  of  the  detention.  The  taking  was  an  act  of  human- 
ity, for  if  Captain  Murray  had  taken  out  the  Frenchmen,  and  left  the 
vessel  with  only  Captain  Wright  and  the  boy,  they  could  not  have 
navigated  her  into  port,  and  she  must  have  been  lost  at  sea,  or  fallen 
a  prey  to  the  brigands  of  the  islands.  This  alone  was  a  service  which 
ought  to  be  rewarded  with  salvage. 

But  she  was  in  danger  of  condemnation  in  the  French  courts  of 
admiralty.  The  case  of  Talbot  v.  Seeman  has  confirmed  the  principle 
adopted  by  Sir  W.  Scott,  in  the  case  of  The  War  Onskan,  2  Rob.  246, 
that  the  departure  of  France  from  the  general  principles  of  the  law  of 
nations,  varied  the  rule  that  salvage  is  not  due  for  the  recapture  of 
a  neutral  out  of  the  hands  of  her  friend ;  and  that  the  general  conduct 
of  France  was  such  as  to  render  the  recapture  of  a  neutral  out  of  her 
hands,  an  essential  service,  which  would  entitle  the  recaptors  to  sal- 
vage. If  she  had  been  carried  into  a  French  port,  how  unequal  would 
have  been  the  conflict?  Who  would  have  been  believed,  the  privateer 
or  the  claimant  ?  The  Danish  papers  would  have  been  considered  only 
as  a  cover  for  American  property.  The  danger  is  shown  by  the  appre- 
hensions of  Captain  Wright  and  his  crew ;  by  the  declarations  of  the 
privateer ;  by  the  proces  verbal;  and  by  the  actual  imprisonment  of  the 
crew. 

But,  independent  of  the  general  misconduct  of  France,  there  are 
several  French  ordinances  under  which  she  might  have  been  con- 
demned. The  case  of  Pollard  v.  Bell,  8  T.  R.  444,  shows  that  such 
ordinances  may  justify  the  condemnation.  The  case  of  Bcrnardi  v. 
Motteux,  2  Doug.  575,  shows  that  the  French  courts  actually  do  pro- 
ceed to  condemnation  upon  them,  as  in  the  case  of  throwing  over 
papers,  etc.  So,  in  the  case  of  Mayne  v.  Walter,  Park  on  Insurance, 
414  (363),  the  condemnation  was  because  the  vessel  had  an  English 
supercargo  on  board. 

By  the  ordinances  of  France,  Code  des  Prises,  vol.  1,  p.  306,  §  9, 
"all  foreign  vessels  shall  be  good  prize  in  which  there  shall  be  a  super- 
cargo, commissary  or  chief  officer  of  an  enemy's  country  ;  or  the  crew 
of  which  shall  be  composed  of  one-third  sailors  of  an  enemy's  state ; 
or  which  shall  not  have  on  board  the  roles  d' equipage  certified  by  the 
public  officers  of  the  neutral  places  from  whence  the  vessels  shall 
have  sailed."     And  by  another  ordinance,  1  Code  des  Prises,  303,  § 


178  JUDGMENTS  OF  THE  SUPREME  COURT 

6,  "No  regard  is  to  be  paid  to  the  passports  granted  by  neutral  or 
allied  powers,  to  the  owners  or  masters  of  vessels,  subjects  of  the 
enemy,  if  they  have  not  been  naturalized,  or  if  they  shall  have  not 
transferred  their  domicil  to  the  states  of  the  said  powers,  three  months 
before  the  1st  of  September,  in  the  present  year;  nor  shall  the  said 
owners  or  masters  of  vessels,  subjects  of  the  enemy,  who  shall  have 
obtained  such  letters  of  naturalization,  enjoy  their  effect,  if,  after  they 
shall  have  obtained  them,  they  shall  return  to  the  states  of  the  enemy, 
for  the  purpose  of  their  continuing  their  commerce;"  and  by  the  next 
article,  "vessels,  enemy  built,  or  which  shall  have  been  owned  by  an 
enemy,  shall  not  be  reputed  neutral  or  allied,  if  there  are  not  found 
on  board  authentic  documents,  executed  before  public  officers,  who  can 
certify  their  date,  and  prove  that  the  sale  or  transfer  thereof  had  been 
made  to  some  of  the  subjects  of  an  allied  or  neutral  power,  before  the 
commencement  of  hostilities ;  and  if  the  said  deed  or  transfer  of  the 
property  of  an  enemy  to  the  subject  of  the  neutral  or  ally,  shall  not 
have  been  duly  enregistered  before  the  principal  officer  of  the  place  of 
departure,  and  signed  by  the  owner,  or  the  person  by  him  authorized." 

In  violation  of  these  ordinances,  the  chief  officer,  Captain  Wright, 
was  a  Scot,  an  enemy  to  France:  for  although  he  had  a  burgher's 
brief,  yet  it  did  not  appear,  that  he  had  resided  three  months  before 
he  obtained  it ;  and  we  have  before  seen,  that  a  previous  residence  was 
not  necessary,  by  the  laws  of  Denmark,  to  entitle  him  to  a  burgher's 
brief,  for  the  purpose  of  being  master  of  a  vessel.  In  the  next  place, 
the  whole  number  of  the  crew,  with  the  master,  being  eleven,  and 
three  of  the  crew  being  Americans  and  the  master  a  Scot,  more  than 
one-third  of  the  crew  were  enemies  of  France.  The  muster-roll  did 
not  describe  the  place  of  nativity  of  the  crew.  The  vessel  was  pur- 
chased after  the  commencement  of  hostilities  between  France  and  the 
United  States.  And  there  was  no  authority  on  board  from  the  Amer- 
ican owners  to  Phillips,  the  agent  who  made  the  sale,  in  violation  of 
the  regulation  of  17th  February,  1794,  art.  4  (2  Code  des  Prises,  p. 
14),  which  declares  "the  vessel  to  be  good  prize,  if  being  enemy  built, 
or  belonging  originally  to  the  enemy,  the  neutral,  the  allied,  or  the 
French  proprietor,  shall  not  be  able  to  show,  by  authentic  documents, 
found  on  board,  that  he  had  acquired  his  right  to  her  before  the  declar- 
ation of  war."    See  also  2  Valin,  249,  §  9 ;  251,  §  12,  and  244. 

What  chance  of  escape  had  this  vessel,  under  all  these  ordinances, 
which  the  French  courts  were  bound  to  enforce  ?    The  case  of  Pollard 


MURRAY  V.  SCHOONER  CHARMING  BETSY  179 

V.  Bell,  8  T.  R.  434,  is  precisely  in  point.  The  vessel  in  that  case  was 
Danish,  and  had  all  the  papers  usually  carried  by  Danish  vessels.  But 
she  was  condemned  in  the  highest  court  of  appeal  in  France,  because 
the  master  was  a  Scot,  who  had  obtained  a  Danish  burgher's  brief, 
subsequent  to  the  hostilities.  Has  there,  then,  been  no  service  ren- 
dered ? 

It  is  no  objection  to  the  claim  of  salvage,  that  it  is  not  made  in  the 
libel.  Salvage  is  a  condemnation  of  part  of  the  thing  saved.  The 
prayer  for  condemnation  of  the  whole  includes  the  part:  it  may  be 
made  by  petition,  or  even  ore  tenus. 

The  means  used  for  saving  need  not  be  used  with  that  sole  view. 
Talbot  V.  Seeman.  As  to  the  quantum  of  salvage,  he  referred  to  the 
opinion  of  Sir  W.  Scott,  in  the  case  of  The  Sarah,  1  Rob.  263. 

III.  But  if  The  Charming  Betsy  is  not  liable  to  condemnation,  under 
the  non-intercourse  law,  and  if  Captain  Murray  is  not  entitled  to  sal- 
vage, yet  the  restitution  ought  to  be  made  of  the  net  proceeds  of  the 
sale  only,  and  not  with  damages  and  costs. 

In  maritime  cases,  probable  cause  is  always  a  justification.  The 
grounds  of  suspicion,  in  the  present  instance,  have  been  already  men- 
tioned ;  and  when  to  these  are  added  the  circumstances,  that  it  was  at 
Captain  Wright's  request  that  Captain  Murray  took  possession  of  the 
vessel ;  that  he  consented  to  be  carried  into  Martinique ;  that  if  he  had 
taken  out  the  Frenchmen,  and  left  the  vessel  in  the  midst  of  the  ocean, 
with  only  Captain  Wright  and  his  boy,  they  would  have  been  left  to 
destruction;  that  part  of  the  cargo  was  damaged,  part  rifled,  and  all 
perishable ;  and  that  Captain  Murray  oflFered  to  release  the  vessel  and 
cargo,  on  security,  there  can  hardly  be  a  stronger  case  to  save  him 
from  a  decree  for  damages. 

In  the  case  of  the  Tzuo  Susannahs,  2  Rob.  110,  it  is,  by  Sir  W.  Scott, 
taken  as  a  principle,  that  a  seizure  is  justified  by  an  order  for  further 
proof,  and  he  decreed  a  restitution  of  the  proceeds  only,  it  not  being 
shown  that  the  captors  conducted  themselves  otherwise  than  with  fair 
intentions.  In  the  present  case,  there  is  no  pretense  that  Captain  Mur- 
ray did  not  act  from  the  purest  motives,  and  from  a  wish  faithfully 
to  execute  his  instructions. 

Key,  contra. — 1.  The  schooner  Charming  Betsy  and  her  cargo 
were  neutral  property,  and  not  liable  to  capture  under  the  non-inter- 
course law.     2.  When  recaptured,  she  was  not  an  armed  French  ves- 


180  JUDGMENTS  OF  THE  SUPREME  COURT 

sel  capable  of  annoying  our  commerce,  and  therefore  not  liable  under 
the  acts  of  Congress  authorizing  the  capture  of  such  vessels.  3.  She 
was  not  in  imminent  danger  when  recaptured,  and  therefore  Captain 
Murray  is  not  entitled  to  salvage,  4.  Under  all  the  circumstances  of 
the  case,  he  acted  illegally,  and  is  liable  for  damages  which  have  been 
properly  assessed. 

I.  As  to  the  neutral  character  of  the  vessel  and  cargo,  he  contended  : 
1.  That  Jared  Shattuck  never  was  an  American  citizen.  2.  That  if  he 
was,  he  had  expatriated  himself,  and  had  become  a  Danish  subject, 
3,  That  if  not  a  Danish  subject,  yet  he  was  not  a  citizen  of  the  United 
States. 

1.  The  evidence  is  that  he  was  born  in  Connecticut,  but  before  the 
Declaration  of  Independence,  and  was,  therefore,  a  natural-born  subject 
of  Great  Britain,  He  was  in  trade  for  himself,  in  St.  Thomas,  in  1794. 
This  he  could  not  do  until  he  was  twenty-one  years  of  age,  which  will 
carry  back  the  date  of  his  birth  to  the  year  1773.  He  was  an  apprentice 
at  St.  Thomas  in  the  year  1788  or  1789,  There  is  no  evidence  of  his 
being  in  the  United  States  since  the  Declaration  of  Independence.  But 
if  he  had  been,  yet  he  went  away  while  a  minor,  and  he  could  not 
make  his  election  during  his  minority.  There  is  no  evidence  that  his 
parents  were  citizens  of  the  United  States.  Being  a  natural-born  sub- 
ject of  Great  Britain,  he  could  not  become  a  citizen  of  the  United 
States,  unless  he  was  here  at  the  time  of  the  revolution,  or  his  parents 
were  citizens,  or  unless  he  became  naturalized  according  to  law.  It  is 
incumbent  upon  Captain  Murray  to  prove  him  to  be  a  citizen  of  the 
United  States.  It  is  sufficient  for  us  to  show  that  he  was  born  a  sub- 
ject of  Great  Britain.  They  must  show  how  he  became  a  citizen.  This 
is  a  highly  penal  law,  and  everything  must  be  proved  which  is  neces- 
sary to  bring  the  case  within  the  penalty. 

2.  But  if  he  ever  was  a  citizen  of  the  United  States,  he  had  expatri- 
ated himself.  That  every  man  has  a  right  to  expatriate  himself,  is 
admitted  by  all  the  writers  upon  general  law ;  and  it  is  a  principle 
peculiarly  congenial  to  those  upon  which  our  constitutions  are  founded. 
Some  of  the  States  of  the  Union  have  expressly  recognized  the  right, 
and  even  prescribed  the  form  of  expatriation.  But  where  the  form  is 
not  prescribed,  nothing  more  is  necessary  than  that  it  be  accompanied 
with  fairness  of  intention,  fitness  of  time,  and  publicity  of  election. 

In  the  present  instance,  all  these  circumstances  concur.  No  time 
could  have  been  more  fit  than  the  year  1788  or  1789,  when  all  Europe 


MURRAY  V.  SCHOONER  CHARMING  BETSY  181 

and  America  were  in  a  state  of  profound  peace.  His  country  had  then 
no  claim  to  his  service.  The  fairness  of  intention  is  evidenced  by  its 
having  been  carried  into  effect  by  an  actual  bona  iide  residence  of  ten 
or  eleven  years;  by  serving  an  apprenticeship;  by  actual  domiciliation; 
by  marriage;  by  becoming  a  burgher;  by  acquiring  lands,  and  by  own- 
ing ships.  The  publicity  of  election  is  witnessed  by  the  same  acts,  and 
by  taking  the  oath  of  allegiance  to  Denmark.  The  United  States  have 
prescribed  no  form  of  expatriation.  All  that  he  could  do  to  render  the 
act  public  and  notorious  has  been  done. 

It  is  said  a  man  can  not  cease  to  be  a  citizen  of  one  state,  until  he 
has  become  a  citizen  or  subject  of  another.  But  a  man  may  become  a 
citizen  of  the  world ;  an  alien  to  all  the  governments  on  earth.^  It  is 
in  evidence  that  by  the  laws  of  Denmark  a  man  can  not  become  a  sub- 
ject and  carry  on  trade  without  being  naturalized ;  that  an  oath  of 
allegiance  and  an  actual  domicil  are  necessary  to  naturalization ;  but 
that  a  domicil  is  not  necessary  to  become  a  burgher,  for  the  purpose 
of  navigating  a  Danish  vessel. 

In  the  two  cases  cited  from  1  Rob.  133  (The  Argo),  and  8  T.  R. 
434  {Pollard  v.  Bell),  the  question  was  only  as  to  the  national  char- 
acter of  the  master  of  the  vessel,  not  of  the  owner ;  and  therefore,  they 
do  not  apply  to  the  present  case. 

The  burgher's  brief  of  Captain  Wright  is  dated  19th  May,  1794,  and 
certifies  that  he  had  taken  the  oath  of  fidelity  to  his  Danish  majesty, 
and  was  entitled  to  all  the  privileges  of  a  subject. 

3.  But  if  the  facts  stated  in  the  record  are  not  sufficient  to  prove 
Shattuck  to  be  a  Danish  subject,  yet  they  do  not  prove  him  to  be  a 
citizen  of  the  United  States,  and  if  he  is  not  a  citizen  of  the  United 
States,  it  is  immaterial  of  what  country  he  is  a  subject.  By  the  law 
of  nature  and  nations,  a  man  may,  by  a  bona  fide  domicil,  and  long 
continued  residence  in  a  country,  acquire  the  character  of  a  neutral. 
or  even  of  an  enemy.  In  the  case  of  Scot  v.  Schazvrta,  Comyns.  677, 
it  was  decided  that  residence  in  and  sailing  from  Russia  gave  the 
mariners  of  a  Russian  ship  the  character  of  Russian  mariners,  within 
the  meaning  of  the  British  navigation  act:  and  in  the  case  of  The  Har- 
mony, 2  Rob.  264,  Sir  W.  Scott  condemned  the  goods  of  an  American 
citizen,   because,  by  a  residence   in   France,   for  four  years,  he  had 


1  Ch.  J. — There  can  be  no  doubt  of  that. 

Dallas  said  he  had  been  misunderstood.  He  only  said  that  the  act  of  be- 
coming a  citizen  of  another  state  was  the  most  public  act  of  expatriation  and 
the  best  evidence  of  the  fact. 


182  JUDGMENTS  OF  THE  SUPREME  COURT 

acquired  a  domicil  in  that  country  which  had  given  his  property  the 
character  of  the  goods  of  an  enemy.  In  the  case  of  Wilson  v.  Marryat, 
8  T.  R.  31,  it  was  adjudged  that  a  natural-born  British  subject  might 
acquire  the  character  of  a  citizen  of  the  United  States  for  commercial 
purposes. 

II.  The  Charming  Betsy  was  not  a  French  armed  vessel,  capable  of 
annoying  our  commerce,  and  therefore  not  liable  to  capture  or  con- 
demnation, by  virtue  of  the  limited  war  which  existed  between  the 
United  States  and  France.  In  supporting  this  proposition,  it  is  not 
intended  to  interfere  with  the  decision  of  this  court  in  the  case  of 
Talbot  V.  Seenian.  There  is  a  great  difference  between  the  force  of 
the  Amelia  in  that  case,  and  that  of  The  Charming  Betsy.  The 
Amelia  had  eight  cannon,  was  manned  by  twelve  Frenchmen,  and  had 
been  in  possession  of  the  French  ten  days,  and  must  be  admitted  to 
have  been  such  an  armed  French  vessel  as  came  within  the  meaning 
of  the  acts  of  Congress. 

But  in  the  present  case,  the  vessel  was  built  at  Baltimore,  and  owned 
by  citizens  of  the  United  States.  When  she  sailed  from  Baltimore, 
she  had  four  cannon,  a  number  of  muskets,  etc.,  which  Shattuck  was 
obliged  to  purchase  with  the  vessel,  and  which  he  afterwards  sold  at 
a  considerable  loss.  The  master  swears,  that  at  the  time  of  recapture, 
she  had  only  one  musket,  a  few  balls  and  twelve  ounces  of  powder ;  and 
although  McFarlan  deposes  to  a  greater  quantity  of  arms,  yet  it  ap- 
pears that  he  did  not  go  on  board  of  her  until  eight  days  after  the  re- 
capture. If  arms  were  on  board,  they  ought  to  have  been  brought  in 
with  the  vessel :  this  is  particularly  required  by  the  act  of  Congress. 
No  arms  are  mentioned  in  the  account  of  sales ;  it  is  to  be  presumed, 
as  none  were  brought  in,  that  none  were  on  board.  The  master  ex- 
pressly swears  that  the  French  put  no  force  or  arms  on  board,  when 
they  took  her.  She  could  not,  therefore,  be  such  an  armed  vessel  as 
was  intended  by  the  acts  of  Congress. 

III.  She  was  not  in  imminent  danger  when  recaptured,  and  there- 
fore the  recaptors  are  not  entitled  to  salvage.  It  is  a  general  prin- 
ciple that  the  recapture  of  a  neutral  does  not  entitle  to  salvage. 

It  is  not  intended  to  question  the  correctness  of  the  decision  of  this 
court  in  the  case  of  Talbot  v.  Seeman,  nor  that  of  Sir  W.  Scott,  in  the 
case  of  The  War  Onskan.  Those  cases  were  exceptions  to  the  gen- 
eral rule,  because  the  conduct  of  France  was  in  violation  of  the  law 
of  nations,  and  because  neutral  vessels  had  no  chance  of  escaping  the 
rapacity  of  the  French  prize  courts.    This  system  of  depredation  upon 


MURRAY  V.  SCHOONER  CHARMING  BETSY  183 

neutral  commerce  continued  during  the  years  1798  and  1799.  The 
Amelia  was  recaptured  by  Captain  Talbot,  in  September,  1799,  while 
the  arret  of  18th  January,  1798,  so  injurious  to  neutral  commerce, 
and  the  violences  of  the  prize  courts,  were  in  full  operation. 

The  Charming  Betsy  was  recaptured  by  Captain  Murray,  on  the  3d 
of  July,  1800.  During  this  interval,  great  events  had  occurred  in 
France.  On  the  9th  of  November,  1799,  Bonaparte  was  placed  at  the 
head  of  the  government,  and  a  new  order  of  things  commenced.  On 
the  24th  of  December,  1799,  the  arret  of  the  council  of  five  hundred, 
of  the  18th  January,  1798,  which  made  the  character  of  neutral  vessels 
dependent  upon  the  quality  of  the  cargo,  and  declared  good  prize  all 
those  laden  in  whole  or  in  part  with  the  productions  of  England  or 
her  possessions,  was  repealed,  and  by  a  new  decree,  the  ordinance  of 
1778  was  reestablished.  The  government  adopted  a  more  enlightened 
and  liberal  policy  towards  neutrals.  On  the  26th  of  March,  1800,  a 
new  tribunal  of  prizes  was  erected,  at  the  head  of  which  was  placed  the 
celebrated  Portalis,  author  of  the  Civil  Code.  On  the  29th  of  May, 
1800,  their  principles  were  tested  in  the  case  of  The  Pegou,  an  Ameri- 
can ship  belonging  to  Philadelphia.  This  case  was  a  public  declaration 
to  all  the  world,  that  they  began  to  entertain  a  proper  respect  for  the 
law  of  nations,  and  from  this  time  the  rule  of  salvage,  as  established 
in  the  case  of  The  War  Onskan,  ceased. 

The  Pegou  had  been  condemned  in  an  inferior  tribunal.  On  an  ap- 
peal to  the  council  of  prizes,  Portalis,  with  a  degree  of  liberality  and 
correctness  which  would  confer  honor  upon  any  court  in  the  world, 
declared  that  "excepting  the  case  when  a  prize  is  evidently  and  actually 
enemy's  property,  all  questions  about  the  validity  or  invalidity  of 
prizes,  come  to  the  examination  of  a  fact  of  neutrality."  And  in  dis- 
cussing the  question  as  to  the  necessity  of  a  role  d'equipage,  he  says,  "1 
will  begin  with  the  principle,  that  all  questions  about  neutrality  are  what 
are  called  in  law,  questions  bona  fide,  in  which  due  regard  is  to  be  had 
to  facts  which  are  to  be  properly  weighed,  without  adhering  to  trifling 
appearances."  "But  it  would  be  a  gross  error,  in  believing  that  the 
want  of,  or  the  least  irregularity  in,  one  of  these  pap>ers,  could  operate 
so  far  as  to  cause  the  vessel  to  be  adjudged  good  prize.  Sometimes 
regular  papers  cover  an  enemy's  property,  which  other  circumstances 
unmask.  In  other  circumstances,  the  stamps  of  neutrality  break 
through  omissions  and  irregularities  in  the  forms,  proceeding  from 
mere  negligence,  or  grounded  on  motives  free  from  fraud. 

"We  must  speak  to  the  point;  and  in  these  matters,  as  well  as  in 


184         JUDGMENTS  OF  THE  SUPREME  COURT 

those  which  are  to  be  determined,  we  must  decide  not  by  mere  strict 
forms,  but  by  the  principles  of  good  faith ;  we  must  say,  with  the  law, 
that  mere  omissions  or  mere  irregularities  in  the  forms,  can  not  preju- 
dice the  truth,  if  it  is  stated  by  any  other  ways:  and  si  aliqttid  ex 
solemnibns  deficiat,  cum  equitas  poscit,  subveniendum  est."  "The  main 
point  in  every  case  is  that  the  judge  may  be  satisfied  that  the  property 
is  neutral  or  not."  He  then  cited  a  case  decided  upon  the  6th  article 
of  the  regulation  of  the  21st  of  October,  1744,  by  which  article  the 
act  of  throwing  over  papers  is  made  a  substantive  ground  of  condem- 
nation. But  it  was  decided  that  the  papers  ought  to  be  of  such  a 
nature  as  to  prove  the  property  to  be  enemy's. 

The  two  grounds  upon  which  The  Pegou  was  condemned  in  the  in- 
ferior tribunal  were  that  she  was  armed  for  war,  without  any  com- 
mission or  authority  from  the  United  States,  and  that  there  was  on 
board  no  role  d'eqiiipage,  attested  by  the  public  officers  of  the  port  of 
departure.  She  mounted  ten  guns,  and  was  provided  with  m.uskets  and 
other  warlike  stores.  Upon  the  first  point,  it  was  decided  in  the  council 
of  prizes  that  she  was  not  armed  for  war,  but  for  lawful  defense;  and 
on  the  second,  that  a  j-ole  d'eqiiipage  was  not  absolutely  necessary,  if 
the  property  appeared  otherwise  clearly  to  be  neutral.^ 


1  There  is  so  much  reason,  justice  and  good  sense  appearing  through  a  bad 
translation  of  probably,  not  a  very  accurate  account  of  this  case,  that  it  is  with 
pleasure  transcribed  as  it  has  been  published  in  this  country  from  the  London 
public  prints. 

Opinion  of  Portalis. — After  having  read  the  opinion  of  commissioners  of 
the  government,  left  in  writing  on  the  table,  which  is  as  follows : 

It  appears  that  a  judgment  of  the  tribunal  of  commerce  at  I'Orient,  had 
granted  Captain  Green  the  replevy  of  his  vessel  and  part  of  the  goods  and 
specie  which  composed  the  cargo ;  and  that  on  the  appeal  entered  by  the  comp- 
troller of  marine  at  I'Orient  against  that  judgment,  the  tribunal  of  the  depart- 
ment of  Morbihan  declared  the  vessel  and  cargo  a  good  prize. 

The  grounds  on  which  rested  the  decision  of  the  tribunal  of  Morbihan  were, 
that  the  vessel  was  armed  for  war  without  any  commission  or  authorization 
from  the  American  Government:  and  that  there  was  on  board  no  role  d'equipage 
attested  by  the  public  officers  of  the  port  of  his  departure. 

The  captured  claim  the  nullity  of  the  prize,  and  that  the  vessel  be  reinstated 
in  the  situation  she  was  in  when  captured,  and  that  she  be  delivered  up  as  well 
as  her  cargo,  and  the  dollars  which  were  on  board,  and  also  the  papers,  with 
damages  and  interest  adequate  to  the  losses  they  had  sustained. 

To  be  able  to  determine  on  the  respective  demands,  we  must  first  fix  upon 
the  vahdity  or  invalidity  of  the  prize,  excepting  the  case  when  a  prize  is  evi- 
dently and  actually  enemy's  property,  all  questions  about  the  validity  or  in- 
validity of  prizes  come  to  the  examination  of  a  fact  of  neutrality. 

In  this  case,  was  the  tribunal  of  Morbihan  authorized  to  determine  that  the 
ship  Pegou  was  in  such  circumstances  as  to  be  prevented  from  being  acknowl- 
edged and  respected  as  neutral? 

It  is  said  the  vessel  was  armed  for  war,  and  without  any  authorization  from 


MURRAY  V.  SCHOONER  CHARMING  BETSY  185 

In  another  case  (The  Statira),  which  was  decided  very  shortly  after 
that  of  The  Pegon,  by  the  same  council  of  prizes,  two  questions  arose : 
1.  Whether  The  Statira,  being  an  xA.merican  vessel  captured  by  a  Brit- 
ish ship,  and  recaptured  by  a  French  privateer,  was  liable  to  confisca- 
tion on  the  ground  of  her  being  in  the  hands  of  an  enemy ;  and,  2. 
Whether  her  cargo  was  ground  of  condemnation? 

her  government;  that  she  mounted  10  guns  of  different  rates,  and  that  muskets 
and  warlike  stores  have  been   found   in  her. 

The  captured  reply,  that  the  vessel  being  bound  to  India,  was  armed  for  her 
own  defense,  and  that  the  warlike  ammunition,  the  muskets  and  guns,  did  not 
exceed  what  is  usual  to  have  on  board  for  long  voyages ;  for  my  part,  I  think  it 
is  not  for  having  arms  on  board  only,  that  a  vessel  can  be  said  to  be  armed 
for  war.  The  warlike  armament  is  merely  of  an  offensive  nature;  it  is  deemed 
so  when  there  is  no  other  end  than  attacking,  or  at  least  when  every  thing 
shows  that  attack  is  the  main  point  of  the  armament :  then  a  vessel  is  reputed 
inimical,  or  pirate  if  she  has  no  commission  or  papers  which  may  remove  the 
suspicion.  But  defense  is  of  natural  right,  and  every  means  of  defense  is  lawful 
in  voyages  at  sea,  as  in  every  other  dangerous  occurrence  of  life. 

A  vessel  consisting  of  but  a  small  crew,  and  whose  cargo  in  goods  amounted 
to  a  considerable  sum,  was  evidently  intended  for  trade,  and  not  for  war.  The 
arms  found  on  board  were  not  to  commit  plunder  and  hostility,  but  to  avoid 
them ;  not  for  attack,  but  for  defense.  The  pretense  of  armament  for  war,  in 
my  opinion,  can  not  be  founded. 

I  am  now  to  discuss  the  second  argument  against  the  captors  on  the  want  of 
a  role  d'equipage,  attested  by  the  public  officers  of  the  place  of  her  departure. 

To  support  the  validity  of  the  prize,  they  allege  the  regulation  of  the  21st 
October,  1774,  of  the  26th  of  July,  1778,  and  the  decree  of  the  directory  of  the 
12th  Ventose,  5th  year,  which  require  a  role  d'equipage. 

The  captured,  on  their  part,  claim  the  execution  of  the  treaty  of  commerce, 
between  France  and  the  United  States  of  America,  of  the  6th  February.  1778 ; 
they  contend  that  general  regulations  could  not  derogate  from  a  special  treaty, 
and  that  the  directory  could  not  infringe  the  treaty  by  an  arbitrary  decree. 

It  is  a  fact  that  the  regulations  of  1774  and  1778,  and  the  decree  of  the 
directory  require  a  role  d'equipage  asserted  by  the  public  officers  of  the  place 
of  departure.  It  is  also  a  fact,  that  the  role  d'equipage  is  not  mentioned  in  the 
treaty  of  the  6th  February,  as  one  of  the  papers  requisite  to  establish  neutrality, 
but  I  believe  I  am  not  under  the  necessity  of  discussing  whether  the  treaty  is 
superior  to  the  regulations,  or  whether  the  regulations  are  superior  to  the 
treaty. 

I  will  begin  with  the  principle  that  all  questions  about  neutrality,  are  what 
are  called  in  law,  questions  bona  fide,  in  which  due  regard  is  to  be  had  to  facts 
which  are  to  be  properly  weighed,  without  adhering  to  trifling  appearances. 

Neutrality  is  to  he  proved;  for  this  reason,  the  regulation  of  marine  of  1681, 
article  9,  on  prizes,  states,  that  vessels  with  their  cargoes,  which  shall  not  have 
on  board  charter  parties,  bills  of  lading,  nor  invoices,  shall  be  considered  as 
good  prize. 

From  the  same  motives,  the  regulations  of  1774  and  1778,  put  the  commanders 
of  neutral  vessels  under  obligation  of  proving  at  sea  their  property  being 
neutral,  by  passports,  bills  of  lading,  invoices  and  vessels'  papers. 

The  regulation  of  1774,  whose  enacting  parts  have  been  renewed  by  the 
director}',  literally  expresses,  among  the  papers  requisite  to  prove  neutral  prop- 
erty, that  there  must  be  a  role  d'equipage  in  due  form. 

But  it  would  be  a  gross  error  to  suppose  that  the  want  of,  or  the  least  irreg- 
ularity in,  one  of  these  papers,  could  operate  so  far  as  to  cause  the  vessel  to  be 
adjudged  good  prize. 


186         JUDGMENTS  OF  THE  SUPREME  COURT 

On  the  first  point,  it  was  held  that  the  mere  capture  does  not,  before 
condemnation,  vest  the  property  in  the  captor,  so  as  to  make  it  trans- 
ferable to  the  recaptor,  and  therefore  no  ground  of  confiscation.  On 
the  2d,  there  were  two  inquiries:  1.  Whether,  in  point  of  law,  the 
character  of  the  vessel,  neutral  or  not,  should  be  determined  by  the 
nature  of  the  cargo  ?    2.  Whether  the  cargo  consisted  of  contraband  ? 

Sometimes  regular  papers  cover  an  enemjr's  property,  which  other  circum- 
stances unmask.  In  other  circumstances  the  stamps  of  neutrality  break  through 
omissions  and  irregularities  in  the  forms,  proceeding  from  mere  negligence,  or 
grounded  on  motives  free  from  fraud. 

We  must  speak  to  the  point,  and  in  these  matters  as  well  as  in  those  which 
are  to  be  determined,  we  must  decide  not  by  mere  strict  forms,  but  by  the 
principles  of  good  faith ;  we  must  say  with  the  law,  that  mere  omissions,  or 
mere  irregularities  in  the  forms,  can  not  prejudice  the  truth,  if  it  is  stated  by 
any  other  ways :  and  si  aliquid  ex  solemnibus  deficiat,  cum  equitas  poscit,  sub- 
veniendum  est. 

Therefore,  the  regulation  of  the  26th  July,  1778,  art.  2,  after  having  stated 
that  the  masters  of  neutral  vessels  shall  prove  at  sea  their  property  being 
neutral,  by  passports,  bills  of  lading,  invoices  and  other  vessel  papers,  adds, 
one  of  which  at  least  shall  establish  the  property  being  neutral,  or  shall  contain 
an  exact  description  of  it. 

It  is  not  then  necessary  in  every  case  to  prove  the  property  neutral  by  the 
simultaneous  concurrence  of  all  the  papers  enumerated  in  the  regulations.  But 
it  is  sufficient  according  to  the  circumstances,  that  one  of  these  papers  establish 
the  property,  if  it  is  not  opposed  or  destroyed  by  more  peremptory  circum- 
stances. 

The  main  point  in  every  case  is,  that  the  judge  may  be  satisfied  that  the 
property  is  neutral  or  not. 

We  have  a  precedent  of  what  I  assert  in  art.  6,  of  the  regulation  of  the  21st 
October,  1774;  by  that  article  every  vessel  belonging  to  what  nation  soever, 
neutral,  enemy  or  ally,  from  which  papers  shall  be  proved  to  have  been  thrown 
overboard,  shall  be  adjudged  good  prize,  on  the  proof  only  of  the  papers  having 
been  thrown  overboard ;  nothing  can  be  more  explicit. 

Some  difficulties  arose  on  the  execution  of  that  severe  clause  of  the  law, 
which  has  been   renewed  by  the   regulation  of    1778. 

On  the  13th  November,  1779,  the  king  wrote  to  the  admiral,  that  he  left 
entirely  to  him  and  to  the  commissioners  of  the  council  of  prizes  to  apply  the 
rigidity  of  the  decree,  and  of  the  regulation  of  the  26th  July,  or  to  moderate 
their  clauses  as  peculiar  circumstances  would  require  it  in  their  opinion. 

A  judgment  of  the  council  of  the  27th  December,  in  the  said  year,  rendered 
between  Pierre  Brandebourg,  master  of  the  Swedish  ship  Fortune,  and  M.  de  la 
Rogredourden,  captain  of  the  king's  xebec  the  Fox,  liberated  the  said  vessel 
notwithstanding  some  papers  had  been  thrown  overboard.  It  was  determined 
that  to  ground  an  adjudication  of  the  vessel  on  the  papers  being  thrown  over- 
board, they  ought  to  be  of  such  nature  as  to  prove  the  property  enemy's,  and 
that  the  captain  ought  to  have  had  a  concern  in  throwing  his  papers  overboard ; 
which  was  not  the  case  with  the  Swedish  captain. 

In  this  case  without  discussing  whether  American  captains  are  obliged  or  not 
to  exhibit  a  role  d'equipage,  attested  by  the  public  officers  of  the  place  of  their 
departure,  I  observe  that  this  role  is  supplied  by  the  passport,  and  that  the  cap- 
tured allege  the  impossibility  for  them  to  have  their  role  d'equipage  attested 
by  public  officers  in  Philadelphia,  since  the  intercourse  was  forbidden,  under 
pain  of  death,  with  Philadelphia,  where  a  most  tremendous  epidemic  was  raging: 
I  must  add,  that  the  passport,  the  invoice,  and  all  the  vessel's  papers,  establish 


MURRAY  V.  SCHOONER  CHARMING  BETSY  187 

As  to  the  first,  the  commissary  (PortaHs)  reviews  the  laws  upon 
this  subject,  prior  to  the  arret  of  the  council  of  500,  of  the  29th  Nivose, 
year  6  (January  18th,  1798),  the  severity  of  which  he  condemns;  but 
as  The  Statira  was  captured  while  it  was  in  force,  the  captor  was  en- 
titled to  have  the  capture  tried  by  it.  He  observes  that  such  regula- 
tions are  improperly  styled  laws,  and  they  are  essentially  variable  pro 
temporibus  et  causis;  that  they  should  always  be  tempered  by  wisdom 
and  equity.  He  adverts  to  the  words  in  whole  or  in  part,  by  which,  he 
says,  ought  to  be  understood,  a  great  part,  according  to  the  judicial 

evidently  the  property  of  the  vessel  and  cargo  being  neutral;  none  of  these 
papers  have  ever  been  disputed.  Thus  the  invalidity  of  the  capture  is  obvious; 
whence  it  follows  that  every  thing  which  has  been  taken  from  them,  ought  to 
be  restored  in  kind  or  by  a  just  indemnification. 

As  to  their  claim  for  damages  and  interest,  I  must  observe,  that  such  a 
claim  is  not  in  every  case  the  sequel  of  the  invalidity  of  the  capture. 

Suspicious  proceedings  of  the  captured,  may  occasion  the  mistake  of  the 
captors.  But  when  the  injustice  on  the  part  of  the  captors  can  not  be  excused, 
the  captured  have  a  right  to  damages  and  interest. 

Let  us  apply  these  principles  to  the  cause.  Could  the  captors  entertain  any 
grounded  suspicions  against  the  captain  of  the  ship  Pegouf  was  not  the  neutral- 
ity of  the  ship  proved  by  her  being  an  American  built  ship,  by  her  flag,  by  her 
destination,  by  the  crew  being  composed  of  Americans,  by  her  cargo  consisting 
of  American  goods,  without  any  contraband  articles,  by  the  name  and  the 
character  of  Captain  Green,  very  well  known  by  services  he  rendered  to  the 
French  nation,  by  the  register,  the  passport,  the  invoice,  by  the  papers  on  board, 
finally,  by  the  place  where  she  was  captured,  which  was  far  from  any  suspicious 
destination  ?  It  was  then  impossible  for  the  captors  to  make  any  mistake ;  the 
vessel  struck  her  colors  at  the  first  summons,  the  officers  and  crew  made  faithful 
declarations,  they  answered  plainly  in  their  examination ;  no  pretense  whatever 
was  left  to  the  captors ;  they  don't  appear  to  have  observed  the  forms  prescribed 
by  the  regulation.  Some  very  heavy  charges  are  uttered  against  them ;  but  I 
think  it  is  not  time  yet  to  take  notice  of  them ;  they  will  be  discussed  when  the 
articles  captured  are  restored. 

In  these  circumstances  I  am  of  opinion,  that  a  more  absolute  and  full  replevy 
be  granted  to  Captain  Green  of  the  American  ship  Pegou,  and  her  cargo,  as 
well  as  the  papers  found  on  board ;  as  to  the  claim  of  damages  and  interest, 
made  by  Captain  Green,  that  the  former  be  granted  to  him,  and  they  shall  be 
settled  by  arbitrators  in  the  usual  form. 

(Signed)     Portalis. 

Paris,  6  Prairial,  8th  year. 

The  council  declare  that  the  capture  of  the  ship  Pegou  and  her  cargo,  is  null 
and  of  no  eflfect ;  therefore,  grant  a  full  and  absolute  replevy  of  the  vessel, 
rigging  and  apparel,  together  with  the  papers  and  cargo,  to  Captain  John  Green ; 
as  to  the  damages  and  interest  claimed  by  Captain  Green,  the  council  grant 
them  to  him,  and  they  shall  be  settled  by  arbitrators  in  the  usual  forms. 

Done  at  Paris  on  the  9th  Prairial,  8th  year  of  the  Republic. 
Present, 

Citizen  Redon,  Barknnes, 

Presidents     Niou  Cante,  Dusaub, 

MoREAU.  PaREVAL, 

MoNTicNV,  Grandmaison, 

MONPI-ACID,  ToURNACHER. 


188         JUDGMENTS  OF  THE  SUPREME  COURT 

maxim  parum  pro  nihilo  liabetur.  Upon  this  principle  he  is  of  opinion 
that  a  ship  ought  not  to  be  subject  to  confiscation,  even  under  the  law 
of  the  29th  Nivose,  unless  such  a  part  of  the  cargo  comes  under  the 
description  of  what  is  there  made  contraband,  as  ought  to  excite  a  pre- 
sumption of  fraud  against  all  the  rest. 

The  question  of  contraband  related  to  forty  barrels  of  pitch,  part  of 
the  cargo  of  The  Statira.  He  observed  that  pitch  was  not  made  con- 
traband by  the  treaty  of  1778,  but  as  France  was,  by  that  treaty,  en- 
titled to  all  the  advantages  of  the  most  favored  nation,  and  as  by  a 
subsequent  treaty  between  the  United  States  and  Great  Britain,  pitch 
was  among  the  enumerated  articles  of  contraband,  it  necessarily  be- 
came such  in  regard  to  France.  He,  however,  decides  the  quantity  to 
be  too  small  to  justify  condemnation,  even  upon  the  principle  of  the 
law  of  24th  (quaei'ef  29th)  Nivose.    And  the  ship  was  restored.^ 


1  The  following  account  of  the  case  of  the  Statira  is  extracted  from  London 
papers  of  June  1800. 

We  stated  to  our  readers  some  time  ago  the  principles  upon  which  the  new 
council  of  prizes  at  Paris  proceeded  with  respect  to  neutral  vessels,  and  we 
gave  the  decision  at  length  upon  the  American  ship  Pegou,  which  was  ordered 
to  be  restored  with  costs.  That  decision  showed,  that  a  greater  degree  of 
system  had  been  established,  and  that  the  loose  and  frequently  unjust  principles 
upon  which  the  directory  acted  with  respect  to  captures  of  neutral  ships,  were 
meant  to  be  abandoned.  The  following  is  the  decision  of  the  council  on  another 
case,  that  of  the  Statira: 

The  Statira,  Captain  Seaward,  an  American  ship,  had  been  captured  by  an 
English  vessel,  and  recaptured  by  the  French  privateer  the  Hazard. 

The  first  point  which  the  commissary  considers  is,  the  effect  which  the 
Statira  having  been  in  the  possession  of  the  English  ought  to  have. 

He  observes,  that  if  the  vessel  captured  and  recovered  had  been  French,  and 
recaptured  by  a  national  vessel,  there  would  have  been  nothing  due  to  the 
recaptor,  because  this  is  only  the  exercise  of  that  protection  which  the  state 
owes  to  all  its  subjects  in  all  circumstances.  If  it  had  been  recaptured  by  a 
privateer,  the  French  regulation  gives  the  property  of  the  vessel  to  the  recaptor, 
on  account  of  the  risk  and  danger  of  privateering.  It  might  be  an  act  of 
generosity  to  restore  the  vessel  to  the  original  owner,  but  it  is  not  of  right  that 
it  should. 

In  the  next  place,  he  considers  the  case  of  a  neutral  recaptured  from  the 
enemy.  If  really  neutral,  he  says  the  vessel  must  be  released.  The  ground  of 
this  higher  degree  of  favor  for  a  neutral  he  states  to  be,  that  the  French  vessel 
must  have  been  lost  in  the  country.  But  it  is  not  certain  that  the  neutral 
captured  by  an  enemy  may  not  be  released  by  the  admiralty  courts  of  the 
enemy.  The  mere  capture  does  not  vest  the  property  immediately  in  the  captor, 
so  as  to  make  it  transferable  to  the  recaptor.  The  commissary  considers  the 
property  not  vested  in  the  captor  till  sentence  of  condemnation. 

We  believe  this  is  much  milder,  and  more  favorable  for  neutrals  than  our 
practice.  The  being  a  certain  time  in  the  enemy's  custody,  or  intra  maenia, 
transfers  the  property  to  the  captor.  This  was  held  in  the  late  well-known 
case  of  the  Spanish  prize,  captured  by  the  French,  and  recaptured  by  the 
English.  It  is  to  be  observed,  however,  that  a  principle  of  reciprocity  is  pursued, 
and  that  we  give  the  same  indulgence  to  the  neutral  which  they  would  have 
given  us  in  a  similar  case. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  189 

These  cases  are  read  to  show  that  France  had  abstained  from  those 
violations  of  the  law  of  nations  which  had  caused  the  rule  in  the  case 
of  The  War  Onskan;  and  to  bring  the  present  case  within  the  prin- 
ciples established  by  the  court  in  the  case  of  Talbot  v.  Seeman. 

The  general  conduct  of  France  having  been  changed,  it  is  to  be  pre- 
sumed she  would  have  been  released,  with  damages  and  costs ;  if  not 
upon  the  principles  of  justice,  good  faith,  and  the  law  of  nations,  yet 
upon  those  of  policy.  France  was  at  war  with  Great  Britain;  partial 
hostilities  existed  with  the  United  States.  The  non-intercourse  law 
prevented  our  vessels  from  trading  with  France  or  her  dependencies ; 
and  the  French  West  Indies  could  only  be  supplied  from  the  Danish 
islands.  It  is  not  to  be  believed,  therefore,  that  they  would,  by  con- 
demning this  vessel  (coming  to  them  with  those  very  supplies  which 
they  wanted),  embarrass  a  trade  so  necessary  to  their  very  existence. 

But  independently  of  the  general  misconduct  of  France  towards  neu- 

Having  proved  that  the  Statira  was  not  liable  to  confiscation,  on  the  ground 
of  her  being  in  the  hands  of  an  enemy,  the  commissary  considers  whether  her 
cargo  was  ground  of  confiscation. 

Upon  this  point  he  considers  two  questions,  1st,  whether  in  point  of  law, 
the  character  of  the  vessel,  neutral  or  not,  should  be  determined  by  the  nature 
of  the  cargo?     2d,  whether  the  cargo  consisted  of  contraband? 

He  then  reviews  all  the  laws  upon  this  head.  He  shows  that  till  the  decree 
of  the  29th  Nivose,  (year  6)  January  18,  1798,  the  regulation  states,  "His 
majesty  prohibits  all  privateers  to  stop  and  bring  into  the  ports  of  the  kingdom 
the  ships  of  neutral  powers,  even  though  coming  from  or  bound  to  the  ports 
of  the  enemy,  with  the  exception  of  those  carrying  supplies  to  places  blockaded, 
invested  or  besieged.  With  regard  to  the  ships  of  neutral  states  laden  with 
contraband  commodities  for  the  enemy,  they  may  be  stopped  and  the  said 
commodities  shall  be  seized  and  confiscated,  but  the  vessels  and  the  residue 
of  their  cargo  shall  be  restored,  unless  the  said  contraband  commodities  con- 
stituted three-fourths  of  the  value  of  the  cargo,  in  which  case  the  ship  and 
cargo  shall  be  wholly  confiscated.  His  majesty  however  reserves  the  right  of 
revoking  the  privileges  above  granted,  if  the  enemy  do  not  grant  a  reciprocal 
indulgence  in  the  course  of  six  months  from  the  date  hereof. 

The  law  of  the  29th  Nivose  (year  6),  overturned  all  this  system,  and  enacted, 
"That  the  state  of  ships  in  regard  to  their  being  neutral  or  hostile,  should  be 
determined  by  their  cargo ;  that  accordingly  every  vessel  found  at  sea,  laden 
in  whole  or  in  part  with  commodities  coming  from  England  or  its  possessions, 
should  be  declared  good  prize,  whoever  might  be  owners  of  their  articles  and 
commodities." 

The  severity  of  this  regulation  the  commissary  condemns,  but  as  the  Statira 
was  captured  while  it  was  in  force,  the  captor  was  entitled  to  have  the  capture 
tried  by  it. 

He  examines  next  how  the  regulation  applies,  premising  his  opinion  that  such 
regulations  are  improperly  styled  laws,  and  they  arc  essentially  variable  pro 
temporihus  ct  causis;  that  they  should  always  be  tempered  by  wisdom  and  equity. 
He  adverts  to  the  words  in  whole  or  in  part.  Bj^  the  whole,  he  says,  ought  to  be 
understood  a  great  part,  according  to  the  judicial  maxim  parum  pro  nihilo 
hahetnr.  Upon  this  principle  then,  he  is  of  opinion  that  a  ship  ought  not  to 
be  subject  to  confiscation  even  under  the  law  of  the  29th  Nivose,  unless  such 


190  JUDGMENTS  OF  THE  SUPREME  COURT 

trals,  the  captors  rely  upon  three  points  arising  under  French  ordi- 
nances. 

1.  That  the  role  d' equipage  wants  the  place  of  nativity  of  the  crew. 
But.  according  to  the  opinion  of  Portalis,  this  is  not  a  fatal  defect,  nor 
is  it,  of  itself,  a  sufficient  ground  for  condemnation. 

2.  That  more  than  one-third  of  the  crew  were  enemies  of  France. 
The  word  matelot,  in  the  ordinance  of  1778,  means  a  sailor,  in  contra- 
distinction to  the  captain  or  master.  Exclude  the  master,  and  there 
were  only  ten  persons  on  board,  and  only  three  of  those  are  pretended 
to  be  enemies ;  so  that  one-third  were  not  enemies,  within  the  meaning 
of  the  ordinance. 

But  these  three  pretended  enemies  were  Americans.  The  hostilities 
which  existed  between  France  and  the  United  States  amounted  at  most 
to  a  partial,  limited  war,  according  to  the  decision  of  this  court  in  the 
case  of  Bas  v.  Tingy.  It  was  only  a  war  against  French  armed  force 
found  on  the  high  seas.  It  did  not  authorize  private  hostilities  between 
the  citizens  of  the  two  countries.    Individuals  are  only  enemies  to  each 

a  part  of  the  cargo  comes  under  the  description  of  what  is  there  made  contra- 
band, as  ought  to  excite  a  presumption  of  fraud  against  all  the  rest.  What  that 
part  should  be  is  not  capable  of  definition,  but  should  be  left  to  the  enlightened 
equity  and  sound  discretion  of  the  judge. 

The  Statira  had  on  board  sixty  barrels  of  turpentine  and  forty  barrels  of 
pitch.  The  captor  contended  that  these  were  contraband ;  the  captured  said, 
that  by  the  treaty  of  1778  with  the  Americans,  they  were  not  enumerated  as 
contraband. 

But  the  commissary  shows,  that  the  Americans  by  the  treaty  were  bound  to 
admit  the  French  to  all  the  advantages  of  the  most  favorite  nations ;  that  having, 
in  a  subsequent  treaty  with  England,  made  pitch  contraband,  with  respect  to  the 
latter,  necessarily  it  became  contraband  with  regard  to  France. 

The  learned  commissary,  however,  thinks  that  even  upon  the  principle  of 
the  law  of  the  24th  Nivose,  the  quantity  of  pitch  was  too  small  to  justify  con- 
fiscation. 

In  the  next  place  the  captor  alleged,  that  2911  pieces  of  Campeachy  wood, 
part  cargo  of  the  Statira,  was  the  produce  of  English  possessions. 

This  point,  however,  had  not  been  regularly  ascertained,  as  the  report  on  the 
subject  was  made  without  the  captured  being  called  as  a  party. 

The  commissary  states,  however,  strong  circumstances  of  suspicion  on  this 
head.  The  captured  had  not  appealed  against  the  confiscation  of  the  cargo. 
The  point  came  under  the  consideration  of  the  court  on  the  appeal  of  the 
captor,  who  wanted  to  get  both  ship  and  cargo. 

The  commissary  therefore  saw  no  reason  for  condemning  the  ship,  which 
was  clearly  neutral ;  but  on  account  of  the  suspicions  against  the  character 
of  the  cargo,  he  thought  no  indemnification  whatever  was  due  to  the  captured. 

Judgment  was  pronounced  accordingly. 

The  piratical  decree  of  the  29th  Nivose  (year  6),  mentioned  above  with  so 
much  severity  by  Portalis,  has  been  repealed,  and  things  have  been  placed  upon 
the  footing  of  the  regulation  of  1778 ;  that  is,  the  French  are  to  treat  neutrals 
in  regard  to  contraband  in  the  same  way  in  which  they  are  treated  by  tis  ;  they 
will  not  allow  the  Americans  to  carry  into  England  a  commodity  which  the 
English  would  seize  as  contraband  going  into  the  ports  of  France. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  191 

other,  in  a  general  war.  The  war  extended  only  to  those  objects 
pointed  out  in  the  acts  of  Congress;  as  to  everything  else,  the  state 
of  the  two  nations  was  to  be  considered  as  a  state  of  peace.  It  was  a 
war  only  quoad  hoc.  The  individuals  of  tlie  two  nations  were  always 
neutral  to  each  other.  A  citizen  of  the  United  States  could  only  be 
considered  as  an  enemy  of  France,  while  in  arms  against  her;  the 
neutrality  was  the  counterpart,  or  (to  use  a  mathematical  expression), 
the  complement  of  the  war.  A  citizen  of  the  United  States,  peaceably 
navigating  a  neutral  vessel,  could  not  be  burdened  with  the  character 
of  enemy. 

3.  The  master  was  a  Scot  by  birth.  The  ordinance  cited  from  1  Code 
des  Prises,  303,  §  6,  in  support  of  this  objection,  is  in  the  alternative. 
The  master  of  the  vessel  must  be  naturalized  in  a  neutral  country,  or 
must  have  transferred  his  domicil  to  the  neutral  country,  three  months 
before  the  first  of  September  in  that  year.  Naturalization  is  not  neces- 
sary, if  there  be  such  a  transfer  of  the  domicil ;  and  the  domicil  is  not 
necessary,  if  the  party  be  naturalized.  But  the  authority  of  Portalis 
shows  that  these  decrees  are  not  to  be  considered  as  laws,  but  suh  modo. 
They  are  only  regulations  made  at  particular  times,  for  particular  pur- 
poses. 

If  the  same  evidence  had  been  produced  at  Guadeloupe,  which  has 
been  brought  here  (and  the  same  would  have  been  more  easily  obtained 
there),  there  can  be  no  doubt  the  vessel  would  have  been  restored.  It 
is  in  evidence  that  other  vessels  of  Mr.  Shattuck  had  been  released. 
No  salvage  can  be  allowed,  unless  the  danger  was  imminent,  not  prob- 
lematical. 

IV.  Under  all  the  circumstances  of  the  case.  Captain  Murray  acted 
illegally,  and  is  liable  for  damages ;  which  have  been  properly  assessed. 
His  subsequent  conduct  rendered  the  transaction  tortious,  ah  initio.  If 
he  was  justified  in  rescuing  the  vessel  from  the  hands  of  the  French, 
his  subsequent  detention  of  the  vessel,  and  the  sale  of  the  cargo  at 
Martinique  by  his  own  agent,  without  condemnation,  were  unauthor- 
ized acts,  in  violation  of  tfie  rights  of  neutrality.  The  libel  says  nothing 
of  the  cargo;  it  is  first  mentioned  in  the  replication.  The  libel  only 
prays  condemnation  of  the  vessel,  on  the  ground  of  violation  of  the 
non-intercourse  law. 

By  law,  he  was  bound  to  bring  the  vessel  and  cargo  into  a  port  of 
the  United  States  for  adjudication,  and  had  no  authority  to  sell  the 
cargo,  before  condemnation.    As  to  the  pretense  of  her  being  an  armed 


192  JUDGMENTS  OF  THE  SUPREME  COURT 

French  vessel,  he  ought  to  have  sent  the  arms  into  port  with  the  vessel, 
as  the  only  evidence  of  their  existence. 

The  commander  of  the  French  privateer,  in  his  commission  to  the 
prize-master,  calls  her  the  Danish  schooner  Charming  Betsy,  William 
Wright,  master.  There  was  no  evidence  to  impeach  the  credence  due 
to  the  papers  found  on  board  of  her,  which  at  that  time  had  every 
appearance  of  fairness,  and  which  have  since  been  incontestably  proved 
to  be  genuine. 

The  facts  stated  in  the  proccs  verbal  are,  that  she  had  no  log-book; 
that  the  mate  declared  himself  to  be  an  American ;  that  the  flag  and 
pendant  were  American;  that  the  Danish  flag  had  been  made,  during 
the  chase,  which  was  confirmed  by  the  two  boys,  and  that  she  had  no 
pass  from  the  French  consul.  Whatever  weight  might  be  given 
to  these  facts,  if  true,  yet  the  outrageous  and  disorderly  conduct  of  the 
crew  of  the  privateer  entirely  destroys  the  credit  of  the  proces  verbal, 
and  at  best  it  would  be  only  the  declaration  of  interested  plunderers. 

But  it  is  said  that,  by  the  law  of  nations,  probable  cause  is  a  sufficient 
excuse ;  and  that  this  law  operates  as  the  law  of  nations.  In  revenue 
laws,  probable  cause  is  no  justification,  unless  it  is  made  so  by  the  laws 
themselves.  This  is  not  a  war  measure.  If  the  United  States  were  at 
war,  it  was  unnecessary,  because  the  act  of  trading  with  an  enemy  is 
itself  a  ground  of  condemnation.  This  law  was  passed  because  the 
United  States  were  not  at  war,  and  wished  to  avoid  it,  by  showing  their 
power  over  the  French  colonies  in  the  West  Indies.  It  is  a  municipal 
regulation,  as  well  suited  to  a  state  of  peace  as  of  war.  It  aflfects  our 
own  citizens  only.  It  is  no  part  of  the  law  of  nations.  What  would 
other  nations  call  it,  were  they  bound  to  notice  it?  It  can  give  no  right 
to  search  and  seize  neutrals.    It  could  not  affect  their  rights. 

He  who  takes  must  take  at  his  peril.  The  law  only  gives  authority  to 
seize  vessels  of  the  United  States.  If  he  takes  the  vessel  of  another 
nation,  he  must  answer  it. 

As  to  the  damages.  Nothing  can  justify  Captain  Murray ;  but  it 
was  a  mistake  of  the  head,  not  of  the  heart.  His  intentions  were  honest 
and  correct,  but  he  suffered  his  suspicions  to  carry  him  too  far.  If  it 
was  an  error  in  judgment,  shall  he  have  salvage?  If  an  injury  has 
been  done  to  the  innocent  and  unfortunate  owner,  shall  he  have  no 
redress?  The  consequences  to  him  were  the  same,  whatever  might 
have  been  the  motive.  The  damages  have  been  properly  assessed  in 
the  district  court.    If  damages  are  to  be  given,  they  ought  not  to  be  less 


MURRAY  V.  SCHOONER  CHARMING  BETSY  193 

than  the  original  cost  of  vessel  and  cargo,  with  the  outfit,  insurance, 
interest  and  expenses ;  and  upon  calculation,  it  will  be  found  that  the 
damages  assessed  do  not  exceed  the  amount  of  these.^ 

Dallas. — It  is  said  that  Mr.  Shattuck  never  was  a  citizen  of  the 
United  States.  What  is  averred  and  admitted  need  not  be  proved.  Mr. 
Soderstrom,  in  his  rejoinder,  expressly  admits  that  he  was  once  a  citi- 
zen of  the  United  States  by  alleging  that  he  had  transferred  his  alle- 
giance from  the  Government  of  the  United  States  to  his  Danish  maj- 
esty. Mr.  Shattuck's  burgher's  brief  is,  at  length,  for  the  first  time, 
produced  and  admitted  to  be  made  a  part  of  the  record.  It  bears  date 
on  the  10th  of  April,  1797.  It  may  here  be  remarked  that  some  of  the 
witnesses  have  testified  that  he  became  a  burgher  in  1795.  This  shows 
how  little  reliance  ought  to  be  placed  upon  their  testimony.  If,  then, 
Mr.  Shattuck  did  expatriate  himself,  it  was  not  until  April,  1797. 
It  has  been  conceded  that  a  man  can  not  expatriate  himself  unless  it 
be  done  in  a  fit  time,  with  fairness  of  intention,  and  publicity  of  act. 

As  to  the  fitness  of  the  time.  What  was  the  situation  of  this  country 
and  France  in  the  year  1797?  In  1795,  the  British  treaty  had  excited 
the  jealousy  of  France.  In  1796,  she  passed  several  edicts  highly  in- 
jurious to  our  commerce.  Mr.  Pinckney  had  been  sent  as  an  envoy 
extraordinary,  and  was  refused.  France  had  gone  on  in  a  long  course 
of  injury  and  insult,  which  at  length  roused  the  spirit  of  the  nation. 
On  the  14th  of  June,  1797,  the  act  of  Congress  was  passed,  prohibiting 
the  exportation  of  arms ;  on  the  23d,  the  act  for  the  defense  of  the 
ports  and  harbors  of  the  United  States ;  on  the  24th,  the  act  for  rais- 
ing 80,000  militia;  on  the  1st  July,  the  act  providing  a  naval  arma- 
ment; on  the  13th  of  June,  1798,  the  first  non-intercourse  bill  was 
passed,  and  on  the  7th  of  July,  the  treaties  with  France  were  annulled. 
These  facts  show  that  the  time  when  Mr.  Shattuck  chose  to  expatriate 
himself,  was  a  time  of  approaching  hostilities,  and  when  everything  in- 
dicated war. 

As  to  the  fairness  of  his  intention.  The  same  facts  show  what  that 
intention  was.  It  was  to  carr\'  on  that  trade  which  everything  tended 
to  show  would  soon  become  criminal  by  the  laws  of  war,  and  from  the 
exercise  of  which  the  other  citizens  of  the  United  States  were  about  to 


1  Marshall,  Ch.  J.  What  would  have  been  the  law  a?  to  probable  cause,  if 
there  had  been  a  public  general  war  between  France  and  the  United  States,  and 
the  vessel  had  been  taken  on  suspicion  of  being  a  vessel  of  the  United  States, 
trading  with  the  enemj',  contrarj'  to  the  laws  of  war?  Would  probable  cause 
excuse,  in  such  a  case,  if  it  should  turn  out  that  she  was  a  neutral? 


194  JUDGMENTS  OF  THE  SUPREME  COURT 

be  interdicted.  The  act  of  Congress  points  to  this  very  case.  It  was 
to  prevent  transactions  of  this  nature,  that  the  word  "elsewhere"  was 
inserted. 

But  why  was  not  this  burgher's  brief,  or  a  copy  of  it,  put  on  board 
the  vessel?  The  answer  is  obvious,  because  it  would  have  discovered 
the  time  of  expatriation,  which  would  have  increased  the  suspicions 
excited  by  the  origin  of  the  vessel,  by  the  recent  transfer,  by  the  nature 
of  the  cargo,  and  by  the  character  of  the  crew.  Domicil  in  a  neutral 
country  gives  a  man  only  the  rights  of  trade;  it  will  not  justify  him  in 
a  violation  of  the  laws  of  his  country. 

If,  then,  Mr.  Shattuck  could  not  expatriate  himself,  or  if  he  has 
not  expatriated  himself,  he  is  bound  to  obey  the  laws  of  the  United 
States.  A  nation  has  a  right  to  bind,  by  her  laws,  her  own  citizens 
residing  in  a  foreign  country;  as  the  United  States  have  done  in  the 
act  of  Congress  respecting  the  slave-trade  and  in  the  non-intercourse 
law. 

The  question,  whether  the  vessel  was  capable  of  annoying  our  com- 
merce, depends  upon  matter  of  fact,  of  which  the  court  will  judge. 
The  number  of  men  was  sufficient;  the  testimony  respecting  the  cut- 
lasses is  supported  by  the  nature  of  the  transaction,  and  by  the  usage 
in  such  cases.  Some  arms  were  necessary  to  prevent  Captain  Wright 
and  his  boys  from  rising  and  rescuing  the  vessel.  Circumstances  are 
as  strong  as  oaths,  and  are  generally  more  satisfactory.  The  vessel, 
having  port-holes,  was  constructed  for  war,  and  in  an  hour  after  her 
arrival  at  Guadeloupe,  might  have  been  completely  equipped.  Upon 
the  principles  of  the  case  of  Talbot  v.  Seeman,  Captain  Murray  was 
bound  to  guard  against  this,  and  he  would  have  been  culpable,  if  he 
had  suffered  her  to  escape. 

But  it  is  said  that  she  was  not  in  danger  of  condemnation  by  the 
French,  because  France  had  ceased  from  her  violation  of  the  laws  of 
nations,  because  she  had  repealed  the  obnoxious  arret  of  18th  Jan- 
uary, 1798,  and  because  one-third  of  the  crew  were  not  her  enemies. 
Admitting  all  this,  yet  if  one  ground  of  condemnation  remained,  she 
would  have  been  condemned.  The  vessel  was  transferred  from  an 
enemy  to  a  neutral,  during  the  heat  of  hostilities.  This  alone  was  a 
sufficient  ground  of  condemnation,  under  the  ordinance  already  cited 
from  1  Code  des  Prises,  304,  art  7.  In  the  case  of  Talbot  v.  Seeman, 
the  ground  of  salvage  was  that  the  vessel  was  liable  to  condemnation 
under  a  French  arret.  And  that  the  courts  of  France  were  bound  to 
carry  the  arret  into  effect. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  195 

The  conduct  of  Captain  Murray  was  not  illegal.  He  was  bound,  by 
law,  as  well  as  by  his  instructions,  to  take  the  vessel  out  of  the  hands 
of  the  French.  It  was  with  the  consent,  if  not  at  the  request,  of  Cap- 
tain Wright ;  and  it  was  in  itself  an  act  of  humanity.  His  conduct  was 
fair,  upright  and  honorable  in  the  whole  transaction.  He  offered  to 
take  security  for  the  vessel  and  cargo.  The  cargo  was  perishable :  if  it 
had  been  brought  to  the  United  States,  it  would  not  have  been  in  a 
merchantable  condition  ;  or  if  it  had  been,  it  would  not  have  sold  so  high 
here  (being  chiefly  articles  of  American  produce)  as  at  Martinique. 
The  sale  was  fair,  and  the  proceeds  brought  to  the  United  States  to 
wait  the  event  of  the  trial. 

Probable  cause  is  a  thing  of  maritime  jurisdiction ;  and  authorities  in 
point  may  be  found,  even  at  common  law.  If  it  is  a  municipal  regula- 
tion, it  is  one  which  affects  the  whole  world.  It  is  engrafted  upon  the 
law  of  nations.  It  is  municipal  only  as  it  emanates  from  the  municipal 
authority  of  the  nation.  But  the  whole  world  is  bound  to  notice  a  law 
which  affects  the  interests  of  all  nations  in  the  world. 

As  to  the  damages.  The  principles  upon  which  they  are  assessed  do 
not  appear  from  the  report  of  the  assessors,  but  the  probability  is  that 
they  were  founded  upon  the  estimates  of  the  probable  profits  of  the 
voyage,  as  stated  in  the  testimony  of  some  of  the  witnesses.  In  a  case 
of  this  kind,  where  the  purity  of  intention  is  admitted,  it  can  never  be 
proper  to  give  speculative  or  vindictive  damages.^ 

Martin,  in  reply. — 1.  As  to  the  national  character  of  Shattuck.  He 
was  bom  before  the  revolution;  probably,  in  1773  or  1774;  at  least 
twenty-one  years  before  April  10th,  1797,  which  will  bring  it  before 
the  Declaration  of  Independence.  In  Duane's  Case,  it  was  decided  that 
even  if  it  had  been  proved,  that  he  was  born  in  New  York,  yet  his  birth 
being  before  the  revolution,  and  having  been  carried  to  Ireland  during 
his  minority,  he  was  an  alien. 

The  rejoinder  of  Mr.  Soderstrom  does  not  admit  the  fact  that  Shat- 
tuck was  a  citizen  of  the  United  States ;  but  if  it  did,  it  is  coupled  with 
an  express  allegation  that  he  had  duly  expatriated  himself ;  and  if  part 
is  taken,  the  whole  must  be  taken.  The  words  of  the  rejoinder  are, 
"and  this  party  expressly  alleges  and  avers  that  the  said  Jared  Shattuck, 
at  the  several  times  and  periods  above  mentioned,  and  long  before,  and 
in  the  intermediate  times  which  elapsed  between  the  said  several  times 


1  In  answer  to  an  inquiry  by  the  Chief  Justice  for  authorities  to  support 
the  position  that  probable  cause  is  always  a  justification  in  maritime  cases, 
Mr.  Dallas  referred  generally  to  Browne's  Civil  and  Admiralty  Law,  and  to 
ihe  decisions  of  Sir   Wm.  Scott. 


196  JUDGMENTS  OF  THE  SUPREME  COURT 

or  periods,  had  been,  then  was,  ever  since  hath  been,  and  now  is,  a 
subject  of  his  majesty  the  king  of  Denmark,  owing  allegiance  to  his 
said  majesty,  and  to  no  other  prince,  potentate,  state  or  sovereignty 
whatever;  and  that  he,  the  said  Jared  Shattuck,  had,  long  before  his 
said  purchase  of  the  said  schooner,  duly  expatriated  himself  from  the 
dominions  of  the  United  States,  to  those  of  his  said  majesty ;  and  trans- 
ferred his  allegiance  and  subjection  from  the  said  United  States  and 
their  government  to  his  said  majesty  and  his  government."  The  whole 
purport  of  which  is,  that  if  he  was  ever  a  citizen  of  the  United  States, 
he  had  expatriated  himself. 

Even  if  it  was  an  admission  of  the  fact,  yet  it  could  not  prejudice 
Mr.  Shattuck,  as  the  rejoinder  is  by  Mr.  Soderstrom,  in  character  of 
consul  of  Denmark,  and  as  the  representative  of  the  nation.  If  he  was 
born  before  the  revolution,  he  never  owed  natural  allegiance  to  the 
United  States;  and  if  he  remained  here,  after  the  revolution,  during 
part  of  his  minority,  he  owed  only  a  temporary  and  local  allegiance; 
during  the  existence  of  which,  if  he  had  taken  up  arms  against  the 
United  States,  he  would  have  been  guilty  of  treason.  But  that  alle- 
giance continued  only  while  he  was  a  resident  of  the  country ;  he  had  a 
right  to  transfer  such  temporary  allegiance  whenever  he  pleased.  Fos- 
ter's Cr.  Law,  183,  185. 

That  he  acted  with  a  fair  and  honest  intention  is  proved  by  his  bona 
fide  residence  and  domicil  for  ten  or  eleven  years.  2  Browne's  Civil 
and  x\dmiralty  Law,  328.  The  navigation  act  of  Great  Britain  is  a 
municipal  law,  and  yet  a  bona  fide  domicil  and  residence  of  foreigners, 
were  held  sufficient  to  bring  the  persons  within  its  provisions.  Scott 
qui  tarn,  v.  Schwartz,  Comyns,  677.^ 


^  The  case  of  Scott  v.  Schwartz,  was  an  information  against  the  Russian 
ship  The  Constant,  because  the  master  and  three-fourths  of  the  mariners  were 
not  of  that  country  or  place,  according  to  the  Statute  of  12.  Car.  2,  C.  18,  §  8. 
The  ship  was  built  in  Russia,  and  the  cargo  was  the  product  of  that  country. 
The  master  was  born  out  of  the  Russian  dominions,  but  in  1733  was  admitted, 
and  ever  since  continued  a  burgher  of  Riga ;  and  had  been  a  resident  there, 
when  not  engaged  in  foreign  voyages,  and  traded  from  thence,  nine  years  before 
the  seizure.  There  were  only  eleven  mariners  on  board,  of  whom  four  were 
born  in  Russia;  Morgan  a  fifth  was  born  in  Ireland  and  there  bound  apprentice 
to  the  master,  and  as  such  went  with  him  to  Riga,  and  for  three  or  four  years 
before  the  seizure,  served  on  board  the  same  ship  and  sailed  therein  from  Riga, 
on  this  and  former  voyages.  The  other  six  were  born  out  of  the  dominions  of 
Russia,  but  Stephen  Hanson,  one  of  them,  had  resided  at  Riga  eight  years  next 
before  the  seizure — Hans  Yasper  five  years — Rein  Steingrave  four  years,  and 
Derrick  Andrews,  the  cook,  seven  years,  and  these  four,  during  those  years  had 
sailed  from  Riga  in  that  and  other  vessels. 

It  was  adjudged  that  these  people  were  of  that  country  or  place,  within  the 
meaning  of  the  Statute,  and  the  vessel  properly  manned  and  navigated. 


MURRAY  V.  SCHOONER  CHARMING  BETSY  197 

But  a  stronger  case  than  that  is  found  in  1  Bos.  &  Pul.  430  (Mar- 
ryatt  v.  Wilson),  in  the  exchequer  chamber,  on  a  writ  of  error  from 
the  king's  bench.  In  that  case,  a  natural-born  British  subject,  natural- 
ized in  the  United  States,  since  the  peace,  was  adjudged  to  be  a  citizen 
of  the  United  States,  within  the  treaty  and  navigation  acts  of  Great 
Britain,  so  as  to  carry  on  a  direct  trade  from  England  to  the  British 
East  Indies.  The  opinion  of  Eyre,  Ch.  J.,  beginning  in  p.  439,  is  very 
strong  in  our  favor. 

There  is  no  probability  that  the  vessel  would  have  been  condemned 
at  Guadeloupe.  Mr.  Shattuck,  and  his  course  of  trade,  were  well  known 
there,  and  they  had  already  released  some  of  his  vessels.  Another 
reason  is  that  Bonaparte  was  at  that  time  negotiating  with  the  northern 
powers  of  Europe,  to  form  a  coalition  to  support  the  principle  that 
free  ships  should  make  free  goods ;  and  he  would  have  succeeded  but 
for  the  able  negotiations  of  Lord  Nelson  at  Copenhagen. 

In  Park  on  Insurance,  363,  it  is  said,  "If  the  ground  of  decision  ap- 
pear to  be,  not  on  the  want  of  neutrality,  but  upon  a  foreign  ordinance 
manifestly  unjust,  and  contrary  to  the  law  of  nations,  and  the  insured 
has  only  infringed  such  a  partial  law ;  as  the  condemnation  did  not 
proceed  on  the  point  of  neutrality,  it  can  not  apply  to  the  warranty  so  as 
to  discharge  the  insurer."  And  in  support  of  this  position  he  cites  the 
case  of  Mayne  v.  Walter. 

There  is  no  ordinance  of  France  which,  upon  the  principles  estab- 
lished in  the  case  of  The  Pegou,  would  have  been  a  sufficient  ground 
of  condemnation.  The  circumstances  required  by  those  ordinances  are 
only  evidence  of  neutrality,  which  is  always  a  question  of  botm  fides. 
A  condemnation  upon  either  of  these  ordinances  alone  would  have  been 
contrary  to  the  law  of  nations  ;  but  if  they  are  considered  as  only  requir- 
ing certain  circumstances,  tending  to  establish  the  fact  of  neutrality, 
they  are  perfectly  consistent  with  that  law.  This  is  the  light  in  which 
they  have  been  considered  by  Portalis.  The  French  have  never  con- 
sidered our  vessels  as  the  vessels  of  an  enemy.  Our  vessels  have  not 
been  condemned  by  them  as  enemy  property ;  but  their  sentences  have 
always  been  grounded  upon  a  pretended  violation  of  some  particular 
ordinance  of  France.  Hence,  it  appears  that  they  would  not  have  con- 
sidered an  American  vessel,  sold  to  a  Dane,  as  an  enemy's  vessel 
transferred  to  a  neutral  during  a  state  of  war. 

But  the  claim  of  salvage  is  an  afterthought.  It  was  not  necessary 
to  bring  her  to  the  United  States  to  obtain  salvage.    Salvage  is  a  ques- 


198  JUDGMENTS  OF  THE  SUPREME  COURT 

tion  of  the  law  of  nations,  and  may  be  decided  by  the  courts  of  any 
civilized  nation.  Instead  of  rendering  a  service,  he  has  done  a  tenfold 
injury.  Captain  Murray's  intentions  were  undoubtedly  correct  and  hon- 
orable, and  we  do  not  wish  vindictive  damages;  but  Mr.  Shattuck  will 
be  a  loser,  even  if  he  gains  his  cause,  and  recovers  the  damages  already 
assessed.  Probable  cause  can  not  justify  the  taking  and  bringing  in  a 
neutral ;  but  it  may  prevent  vindictive  damages. 

February  22d,  1804.  Marshall,  Ch.  J.,  delivered  the  opinion  of  the 
court. — The  Charming  Betsy  was  an  American-built  vessel,  belonging 
to  citizens  of  the  United  States,  and  sailed  from  Baltimore,  under  the 
name  of  The  Jane,  on  the  10th  of  April,  1800,  with  a  cargo  of  flour 
for  St.  Bartholomew ;  she  was  sent  out  for  the  purpose  of  being  sold. 
The  cargo  was  disposed  of  at  St.  Bartholomew ;  but  finding  it  impos- 
sible to  sell  the  vessel  at  that  place,  the  master  proceeded  with  her  to 
the  island  of  St.  Thomas,  where  she  was  disposed  of  to  Jared  Shattuck, 
who  changed  her  name  to  that  of  The  Charming  Betsy,  and  having  put 
on  board  her  a  cargo  consisting  of  American  produce,  cleared  her  out, 
as  a  Danish  vessel,  for  the  island  of  Guadeloupe. 

On  her  voyage  she  was  captured  by  a  French  privateer,  and  eight 
hands  were  put  on  board  her  for  the  purpose  of  taking  her  into  Guade- 
loupe as  a  prize.  She  was  afterwards  recaptured  by  Captain  Murray, 
commander  of  the  Constellation  frigate,  and  carried  into  Martinique. 
It  appears  that  the  master  of  The  Charming  Betsy  was  willing  to  be 
taken  into  that  island ;  but  when  there,  he  claimed  to  have  his  vessel  and 
cargo  restored,  as  being  the  property  of  Jared  Shattuck,  a  Danish 
burgher. 

Jared  Shattuck  was  born  in  the  United  States,  but  had  removed  to 
the  island  of  St.  Thomas,  while  an  infant,  and  was  proved  to  have 
resided  there  ever  since  the  year  1789  or  1790.  He  had  been  accus- 
tomed to  carry  on  trade  as  a  Danish  subject;  had  married  a  wife  and 
acquired  real  property  in  the  island,  and  also  taken  the  oath  of  alle- 
giance to  the  crown  of  Denmark  in  1797. 

Considering  him  as  an  American  citizen,  who  was  violating  the  law 
prohibiting  all  intercourse  between  the  United  States  and  France,  or  its 
dependencies,  or  the  sale  of  the  vessel  as  a  mere  cover  to  evade  that 
law.  Captain  Murray  sold  the  cargo  of  The  Charming  Betsy,  which 
consisted  of  American  produce,  in  Martinique,  and  brought  the  vessel 
into  the  port  of  Philadelphia,  where  she  was  libelled  under  what  is 


MURRAY  V.  SCHOONER  CHARMING  BETSY  I99 

termed  the  non-intercourse  law.  The  vessel  and  cargo  were  claimed 
by  the  consul  of  Denmark  as  being  the  bona  fide  property  of  a  Danish 
subject. 

This  cause  came  on  to  be  heard  before  the  judge  for  the  district  of 
Pennsylvania,  who  declared  the  seizure  to  be  illegal,  and  that  the  vessel 
ought  to  be  restored,  and  the  proceeds  of  the  cargo  paid  to  the  claimant, 
or  his  lawful  agent,  together  with  costs  and  such  damages  as  should 
be  assessed  by  the  clerk  of  the  court,  who  was  directed  to  inquire  into 
and  report  the  amount  thereof;  for  which  purpose  he  was  also  directed 
to  associate  with  himself  two  intelligent  merchants  of  the  district,  and 
duly  inquire  what  damage  Jared  Shattuck  had  sustained  by  reason  of 
the  premises.  If  they  should  be  of  opinion  that  the  officers  and  crew 
of  the  Constellation  had  conferred  any  benefit  on  the  owners  of  The 
Charming  Betsy,  by  rescuing  her  out  of  the  hands  of  the  French  cap- 
tors, they  were,  in  the  adjustment,  to  allow  reasonable  compensation 
for  the  service. 

In  pursuance  of  this  order,  the  clerk  associated  with  himself  two 
merchants,  and  reported  that  having  examined  the  proofs  and  vouchers 
exhibited  in  the  cause,  they  were  of  opinion  that  the  owner  of  the  vessel 
and  cargo  had  sustained  damage  to  the  amount  of  $20,594.16,  from 
which  is  to  be  deducted  the  sum  of  $4,363.86,  the  amount  of  moneys 
paid  into  court  arising  from  the  sales  of  the  cargo,  and  the  further 
sum  of  $1,300,  being  the  residue  of  the  proceeds  of  the  said  sales  re- 
maining, to  be  brought  into  court,  $5,663.86.  This  estimate  is  exclusive 
of  the  value  of  the  vessel,  which  was  fixed  at  $3,000.  To  this  report 
an  account  is  annexed,  in  which  the  damages,  without  particularizing 
the  items  on  which  the  estimate  was  formed,  were  stated  at  $14,930.30. 

No  exceptions  having  been  taken  to  this  report,  it  was  confirmed,  and, 
by  the  final  sentence  of  the  court.  Captain  Murray  was  ordered  to  pay 
the  amount  thereof.  From  this  decree  an  appeal  was  prayed  to  the 
circuit  court,  where  the  decree  was  affirmed  so  far  as  it  directed  resti- 
tution of  the  vessel,  and  payment  to  the  claimant  of  the  net  proceeds  of 
the  sale  of  the  cargo  in  Martinique,  and  reversed  for  the  residue.  From 
this  decree,  each  party  has  appealed  to  this  court. 

It  is  contended  on  the  part  of  the  captors,  in  substance,  1st.  That  the 
vessel  Charming  Betsy  and  cargo  are  confiscable  under  the  laws  of  the 
United  States.  If  not  so,  2d.  That  the  captors  are  entitled  to  salvage. 
If  this  is  against  them,  3(1.  That  they  ought  to  be  excused  from  dam- 
ages, because  there  was  probable  cause  for  seizing  the  vessel  and  bring- 
ing her  into  port. 


200  JUDGMENTS  OF  THE  SUPREME  COURT 

1.  Is  The  Charming  Betsy  subject  to  seizure  and  condemnation  for 
having  violated  a  law  of  the  United  States?  The  libel  claims  this  for- 
feiture, under  the  act  passed  in  February,  1800,  further  to  suspend  the 
commercial  intercourse  between  the  United  States  and  France,  and  the 
dependencies  thereof.  That  act  declares,  "that  all  commercial  inter- 
course," etc.  It  has  been  very  properly  observed,  in  argument,  that  the 
building  of  vessels  in  the  United  States  for  sale  to  neutrals,  in  the 
islands  is,  during  war,  a  profitable  business,  which  Congress  can  not 
be  intended  to  have  prohibited,  unless  that  intent  be  manifested  by 
express  words,  or  a  very  plain  and  necessary  implication.  It  has  also 
been  observed  that  an  act  of  Congress  ought  never  to  be  construed  to 
violate  the  law  of  nations,  if  any  other  possible  construction  remains, 
and  consequently  can  never  be  construed  to  violate  neutral  rights,  or 
to  affect  neutral  commerce,  further  than  is  warranted  by  the  law  of 
nations  as  understood  in  this  country.  These  principles  are  believed  to 
be  correct,  and  they  ought  to  be  kept  in  view,  in  construing  the  act 
now  under  consideration. 

The  first  sentence  of  the  act  which  describes  the  persons  whose 
commercial  intercourse  with  France,  or  her  dependencies,  is  to  be 
prohibited,  names  any  person  or  persons  resident  within  the  United 
States,  or  under  their  protection.  Commerce  carried  on  by  persons 
within  this  description  is  declared  to  be  illicit.  From  persons  the  act 
proceeds  to  things,  and  declares  explicitly  the  cases  in  which  the  vessels 
employed  in  this  illicit  commerce  shall  be  forfeited.  Any  vessel  owned, 
hired  or  employed,  wholly  or  in  part,  by  any  person  residing  within  the 
United  States,  or  by  any  citizen  thereof,  residing  elsewhere,  which  shall 
perform  certain  acts  recited  in  the  law,  becomes  liable  to  forfeiture. 
It  seems  to  the  court  to  be  a  correct  construction  of  these  words  to 
say  that  the  vessel  must  be  of  this  description,  not  at  the  time  of  the 
passage  of  the  law,  but  at  the  time  when  the  act  of  forfeiture  shall  be 
committed. 

The  cases  of  forfeiture  are,  first,  a  vessel  of  the  description  men- 
tioned which  shall  be  voluntarily  carried,  or  shall  be  destined,  or  per- 
mitted to  proceed  to  any  port  within  the  French  Republic.  She  must, 
when  carried,  or  destined,  or  permitted  to  proceed  to  such  port,  be  a 
vessel  within  the  description  of  the  act.  The  second  class  of  cases  are 
those  where  vessels  shall  be  sold,  bartered,  intrusted,  or  transferred, 
for  the  purpose  that  they  may  proceed  to  such  port  or  place.  This 
part  of  the  section  makes  the  crime  of  the  sale  dependent  on  the  purpose 


MURRAY  V.  SCHOONER  CHARMING  BETSY  201 

for  which  it  was  made.  If  it  was  intended  that  any  American  vessel, 
sold  to  a  neutral,  should,  in  the  possession  of  that  neutral,  be  liable  to 
the  commercial  disabilities  imposed  on  her  while  she  belonged  to  citi- 
zens of  the  United  States,  such  extraordinary  intent  ought  to  have  been 
plainly  expressed ;  and  if  it  was  designed  to  prohibit  the  sale  of  Ameri- 
can vessels  to  neutrals,  the  words  placing  the  forfeiture  on  the  intent 
with  which  the  sale  was  made  ought  not  to  have  been  inserted.  The 
third  class  of  cases  are  those  vessels  which  shall  be  employed  in  any 
traffic  by  or  for  any  person  resident  within  the  territories  of  the  French 
Republic,  or  any  of  its  dependencies.  In  these  cases,  too,  the  vessels 
must  be  within  the  description  of  the  act,  at  the  time  the  fact  producing 
the  forfeiture  was  committed. 

The  Jane  having  been  completely  transferred,  in  the  island  of  St. 
Thomas,  by  a  bona  nde  sale,  to  Jared  Shattuck,  and  the  forfeiture  al- 
leged to  have  accrued  on  a  fact  subsequent  to  that  transfer,  the  liability 
of  the  vessel  to  forfeiture  must  depend  on  the  inquiry,  whether  the 
purchaser  was  within  the  description  of  the  act. 

Jared  Shattuck  having  been  born  within  the  United  States,  and  not 
being  proved  to  have  expatriated  himself,  according  to  any  form  pre- 
scribed by  law,  is  said  to  remain  a  citizen,  entitled  to  the  benefit,  and 
subject  to  the  disabilities  imposed  upon  American  citizens ;  and  there- 
fore to  come  expressly  within  the  description  of  the  act  which  com- 
prehends American  citizens  residing  elsewhere. 

Whether  a  person  born  within  the  United  States,  or  becoming  a  citi- 
zen according  to  the  established  laws  of  the  country,  can  divest  himself 
absolutely  of  that  character,  otherwise  than  in  such  manner  as  may 
be  prescribed  by  law,  is  a  question  which  it  is  not  necessary  at  present 
to  decide.  The  cases  cited  at  bar,  and  the  arguments  drawn  from  the 
general  conduct  of  the  United  States  on  this  interesting  subject,  seem 
completely  to  establish  the  principle,  that  an  American  citizen  may 
acquire,  in  a  foreign  country,  the  commercial  privileges  attached  to 
his  domicil,  and  be  exempted  from  the  operation  of  an  act  expressed 
in  such  general  terms  as  that  now  under  consideration.  Indeed,  the 
very  expressions  of  the  act  would  seem  to  exclude  a  person  under  the 
circumstances  of  Jared  Shattuck.  He  is  not  a  person  under  the 
protection  of  the  United  States.  The  American  citizen  who  goes  into  a 
foreign  country,  although  he  owes  local  and  temporary  allegiance  to 
that  country,  is  yet,  if  he  performs  no  other  act  changing  his  condi- 
tion, entitled  to  the  protection  of  his  own  government :  and  if.  without 


202  JUDGMENTS  OF  THE  SUPREME  COURT 

the  violation  of  any  municipal  law,  he  should  be  oppressed  unjustly, 
he  would  have  a  right  to  claim  that  protection,  and  the  interposition  of 
the  American  Government  in  his  favor,  would  be  considered  as  a  justi- 
fiable interposition.  But  his  situation  is  completely  changed,  where, 
by  his  own  act,  he  has  made  himself  the  subject  of  a  foreign  power. 
Although  this  act  may  not  be  sufficient  to  rescue  him  from  punishment 
for  any  crime  committed  against  the  United  States,  a  point  not  intended 
to  be  decided,  yet  it  certainly  places  him  out  of  the  protection  of  the 
United  States,  while  within  the  territory  of  the  sovereign  to  whom  he 
has  sworn  allegiance,  and,  consequently,  takes  him  out  of  the  descrip- 
tion of  the  act. 

It  is,  therefore,  the  opinion  of  the  court  that  The  Charming  Betsy, 
with  her  cargo,  being  at  the  time  of  her  recapture  the  hotm  Ude  property 
of  a  Danish  burgher,  is  not  forfeitable,  in  consequence  of  her  being 
employed  in  carrying  on  trade  and  commerce  with  a  French  island. 

2.  The  vessel  not  being  liable  to  confiscation,  the  court  is  brought  to 
the  second  question,  which  is — Are  the  recaptors  entitled  to  salvage? 

In  the  case  of  The  Amelia  (1  Cr.  1),  it  was  decided,  on  mature  con- 
sideration, that  a  neutral  armed  vessel,  in  possession  of  the  French, 
might,  in  the  then  existing  state  of  hostilities  between  the  two  nations, 
be  lawfully  captured ;  and  if  there  were  well-founded  reasons  for  the 
opinion,  that  she  was  in  imminent  hazard  of  being  condemned  as  a 
prize,  the  recaptors  would  be  entitled  to  salvage.  The  court  is  well 
satisfied  with  the  decision  given  in  that  case,  and  considers  it  as  a 
precedent  not  to  be  departed  from  in  other  cases  attended  with  circum- 
stances substantially  similar  to  those  of  The  Amelia.  One  of  these  cir- 
cumstances is,  that  the  vessel  should  be  in  a  condition  to  annoy  Ameri- 
can commerce. 

The  degree  of  arming  which  should  bring  a  vessel  within  this  de- 
scription has  not  been  ascertained,  and  perhaps  it  would  be  difficult 
precisely  to  mark  the  limits,  the  passing  of  which  would  bring  a  cap- 
tured vessel  within  the  description  of  the  acts  of  Congress  on  this  sub- 
ject. But  although  there  may  be  difficulty  in  some  cases,  there  appears 
to  be  none  in  this.  According  to  the  testimony  of  the  case,  there  was 
on  board  but  one  musket,  a  few  ounces  of  powder  and  a  few  balls. 
The  testimony  respecting  the  cutlasses  is  not  considered,  as  showing 
that  they  were  in  the  vessel  at  the  time  of  her  recapture.  The  capacity 
of  this  vessel  for  ofTense  appears  not  sufficient  to  warrant  the  capture  of 
her  as  an  armed  vessel.    Neither  is  it  proved  to  the  satisfaction  of  the 


MURRAY  V.  SCHOONER  CHARMING  BETSY  203 

court,  that  The  Charming  Betsy  was  in  such  imminent  hazard  of  being 
condemned,  as  to  entitle  the  recaptors  to  salvage. 

It  remains  to  inquire  whether  there  was  in  this  case  such  probable 
cause  for  sending  in  The  Charming  Betsy  for  adjudication,  as  will 
justify  Captain  Murray  for  having  broken  up  her  voyage,  and  excuse 
him  from  the  damages  sustained  thereby.  To  effect  this,  there  must 
have  been  substantial  reason  for  believing  her  to  have  been  at  the  time, 
wholly  or  in  part,  an  American  vessel,  within  the  description  of  the  act ; 
or  hired  or  employed  by  Americans ;  or  sold,  bartered  or  trusted  for 
the  purpose  of  carrying  on  trade  to  some  port  or  place  belonging  to 
the  French  Republic. 

The  circumstances  relied  upon  are,  principally,  1st.  The  proccs  verbal 
of  the  French  captors.  2d.  That  she  was  an  American-built  vessel. 
3d.  That  the  sale  was  recent.  4th.  That  the  master  was  a  Scotchman, 
and  the  muster-roll  showed  that  the  crew  were  not  Danes.  5th.  The 
general  practice  in  the  Danish  islands  of  covering  neutral  property. 

The  proces  verbal  contains  an  assertion  that  the  mate  declared  that 
he  was  an  American,  and  that  their  flag  had  been  American,  and  had 
been  changed,  during  the  cruise,  to  Danish,  which  declaration  was  con- 
firmed by  several  of  the  crew.  If  the  mate  had  really  been  an  American, 
the  vessel  would  not,  on  that  account,  have  been  liable  to  forfeiture, 
nor  would  that  fact  have  furnished  any  conclusive  testimony  of  the 
character  of  the  vessel.  The  proces  verbal,  however,  ought  for  several 
reasons  to  have  been  suspected.  The  general  conduct  of  the  French 
West  India  cruisers,  and  the  very  circumstance  of  declaring  that  the 
Danish  colors  were  made  during  the  chase,  were  suflPicient  to  destroy 
the  credibility  of  the  proccs  verbal.  Captain  Murray  ought  not  to  have 
believed  that  an  American  vessel,  trading  to  a  French  port,  in  the  as- 
sumed character  of  a  Danish  bottom,  would  have  been  without  Danish 
colors. 

That  she  was  an  American  vessel,  and  that  the  sale  was  recent,  can 
not  be  admitted  to  furnish  just  cause  of  suspicion,  unless  the  sale  of 
American-built  vessels  had  been  an  illegal  or  an  unusual  act.  That 
the  master  was  a  Scotchman,  and  that  the  names  of  the  crew  were  not 
generally  Danish,  are  circumstances  of  small  import,  when  it  is  recol- 
lected that  a  very  great  proportion  of  the  inhabitants  of  St.  Thomas 
are  British  and  Americans.  The  practice  of  covering  American  prop- 
ertv  in  the  islands  might  and  would  justify  Captain  Murray  in  giving 
to  other  causes  of  suspicion  more  weight  than  they  would  otherwise 


204  JUDGMENTS  OF  THE  SUPREME  COURT 

be  entitled  to,  but  can  not  be  itself  a  motive  for  seizure.  If  it  was,  no 
neutral  vessel  could  escape,  for  this  ground  of  suspicion  would  be  ap- 
plicable to  them  all. 

These  causes  of  suspicion,  taken  together,  ought  not  to  have  been 
deemed  sufficient  to  counterbalance  the  evidences  of  fairness  with  which 
they  were  opposed.  The  ship's  papers  appear  to  have  been  perfectly 
correct,  and  the  information  of  the  master,  uncontradicted  by  those 
belonging  to  the  vessel  who  were  taken  with  him,  corroborated  their 
verity.  No  circumstance  existed  which  ought  to  have  discredited  them. 
That  a  certified  copy  of  Shattuck's  oath,  as  a  Danish  subject,  was  not 
on  board,  is  immaterial,  because,  being  apparently  on  all  the  papers  a 
burgher,  and  it  being  unknown  that  he  was  bom  in  the  United  States, 
the  question  whether  he  had  ceased  to  be  a  citizen  of  the  United  States 
could  not  present  itself. 

Nor  was  it  material,  that  the  power  given  by  the  owners  of  the  vessel 
to  their  master  to  sell  her  in  the  West  Indies,  was  not  exhibited.  It 
certainly  was  not  necessary  to  exhibit  the  instructions  under  which  the 
vessel  was  acquired,  when  the  fact  of  acquisition  was  fully  proved  by 
the  documents  on  board,  and  by  other  testimony. 

Although  there  does  not  appear  to  have  been  such  cause  to  suspect 
The  Charming  Betsy  and  her  cargo  to  have  been  American,  as  would 
justify  Captain  Murray  in  bringing  her  in  for  adjudication,  yet  many 
other  circumstances  combine  with  the  fairness  of  his  character  to 
produce  a  conviction  that  he  acted  upon  correct  motives  from  a  sense 
of  duty ;  for  which  reason  this  hard  case  ought  not  to  be  rendered  still 
more  so  by  a  decision  in  any  respect  oppressive. 

His  orders  were  such  as  might  well  have  induced  him  to  consider  this 
as  an  armed  vessel  within  the  law,  sailing  under  authority  from  the 
French  Republic;  and  such,  too,  as  might  well  have  induced  him  to 
trust  to  very  light  suspicions  respecting  the  real  character  of  a  vessel 
appearing  to  belong  to  one  of  the  neutral  islands.  A  public  officer, 
intrusted  on  the  high  seas  to  perform  a  duty  deemed  necessary  by  his 
country,  and  executing  according  to  the  best  of  his  judgment  the  orders 
he  has  received,  if  he  is  a  victim  of  any  mistake  he  commits,  ought 
certainly  never  to  be  assessed  with  vindictive  or  speculative  damages. 
It  is  not  only  the  duty  of  the  court  to  relieve  him  from  such,  when 
they  plainly  appear  to  have  been  imposed  on  him,  but  no  sentence 
against  him  ought  to  be  affirmed,  where,  from  the  nature  of  the  pro- 
ceedings, the  whole  case  appears  upon  the  record,  unless  those  pro- 


MURRAY  V.  SCHOONER  CHARMING  BETSY  205 

ceedings  are  such  as  to  show  on  what  the  decree  has  been  founded, 
and  to  support  that  decree. 

In  the  case  at  bar,  damages  are  assessed  as  they  would  be  by  the 
verdict  of  the  jury,  without  any  specification  of  items,  which  can  show 
how  the  account  was  made  up,  or  on  what  principles  the  sum  given 
as  damages  was  assessed.  This  mode  of  proceeding  would  not  be 
approved  of  if  it  was  even  probable,  from  the  testimony  contained  in 
the  record,  that  the  sum  reported  by  the  commissioners  of  the  district 
court  was  really  the  sum  due.  The  district  court  ought  not  to  have 
been  satisfied  with  a  report,  giving  a  gross  sum  in  damages,  unaccom- 
panied by  any  explanation  of  the  principles  on  which  that  sum  was 
given.  It  is  true,  Captain  Murray  ought  to  have  excepted  to  this  report. 
His  not  having  done  so,  however,  does  not  cure  an  error  apparent  upon 
it,  and  the  omission  to  show  how  the  damages  which  were  given  had 
accrued,  so  as  to  enable  the  judge  to  decide  on  the  propriety  of  the 
assessment  of  his  commissioners,  is  such  an  error. 

Although  the  court  would  in  any  case  disapprove  of  this  mode  of 
proceeding,  yet,  in  order  to  save  the  parties  the  cost  of  further  prose- 
cuting this  business  in  the  circuit  court,  the  error  which  has  been  stated 
might  have  been  passed  over,  had  it  not  appeared  probable  that  the 
sum  for  which  the  decree  of  the  district  court  was  rendered  is  really 
greater  than  it  ought  to  have  been,  according  to  the  principles  by  which 
the  claim  should  be  adjusted. 

This  court,  therefore,  is  not  satisfied  with  either  the  decree  of  the 
district  or  circuit  court,  and  has  directed  me  to  report  the  following 
decree : 

Decree  of  the  Court. — This  cause  came  on  to  be  heard,  on  the 
transcript  of  the  record  of  the  circuit  court,  and  was  argued  by  counsel ; 
on  consideration  whereof,  it  is  adjudged,  ordered  and  decreed  as  fol- 
lows, to  wit :  That  the  decree  of  the  circuit  court,  so  far  as  it  affirms 
the  decree  of  the  district  court,  which  directed  restitution  of  the  vessel, 
and  payment  to  the  claimant  of  the  net  proceeds  of  the  sale  of  the 
cargo  in  Martinique,  deducting  the  costs  and  charges  there,  according 
to  amount  exhibited  by  Captain  Murray's  agent,  being  one  of  the 
exhibits  in  the  cause,  and  so  far  as  it  directs  the  parties  to  bear  their 
own  costs,  be  affirmed  ;  and  that  the  residue  of  the  said  decree,  wherebv 
the  claim  of  the  owner  to  damages  for  the  seizure  and  detention  of  his 
vessel  was  rejected,  be  reversed. 


206  JUDGMENTS  OF  THE  SUPREME  COURT 

And  the  court,  proceeding  to  give  such  further  decree  as  the  circuit 
court  ought  to  have  given,  doth  further  adjudge,  order  and  decree, 
that  so  much  of  the  decree  of  the  district  court  as  adjudges  the  libellant 
to  pay  costs  and  damages,  be  affirmed ;  but  that  the  residue  thereof,  by 
which  the  said  damages  are  estimated  at  $20,594.16,  and  by  which  the 
libellant  was  directed  to  pay  that  sum,  be  reversed  and  annulled.  And 
this  court  does  further  order  and  decree,  that  the  cause  be  remanded 
to  the  circuit  court,  with  directions  to  refer  it  to  commissioners,  to 
ascertain  the  damages  sustained  by  the  claimants,  in  consequence  of 
the  refusal  of  the  libellant  to  restore  the  vessel  and  cargo  at  Martinique, 
and  in  consequence  of  his  sending  her  into  a  port  of  the  United  States 
for  adjudication ;  and  that  the  said  commissioners  be  instructed  to  take 
the  actual  prime  cost  of  the  cargo  and  vessel,  with  interest  thereon, 
including  the  insurance  actually  paid,  and  such  expenses  as  were  neces- 
sarily sustained  in  consequence  of  bringing  the  vessel  into  the  United 
States,  as  the  standard  by  which  the  damages  ought  to  be  measured. 
Each  party  to  pay  his  own  costs  in  this  court,  and  in  the  circuit  court. 
All  which  is  ordered  and  decreed  accordingly.^ 


LITTLE,  ET  AL.  v.  BARREME,  ET  AL.  (FLYING  FISHy 
Responsibility  of  naval  officer  for  illegal  seizure. — Probable  cause. 

The  commander  of  a  ship  of  war  of  the  United  States,  in  obeying  his  instruc- 
tions from  the  President  of  the  United  States,  acts  at  his  peril:  if  those 
instructions  are  not  strictly  warranted  by  law,  he  is  answerable  in  damages 
to  any  person  injured  by  their  execution. 

The  act  of  the  9th  of  February,  1799,^  did  not  authorize  the  seizure  upon  the 
high  seas  of  any  vessels  sailing  from  a  French  port;  and  the  orders  of  the 
President  of  the  United  States  could  not  justify  such  a  seizure. 

Quaere?    Whether  probable  cause  will  excuse  from  damages? 

Appeal  from  the  Circuit  Court  for  the  District  of  Massachusetts. 

On  the  2d  of  December,  1799,  the  Danish  brigantine  Flying  Fish 
was  captured,  near  the  island  of  Hispaniola,  by  the  United  States 
frigates  Boston  and  General  Green,  upon  suspicion  of  violating  the 
Act  of  Congress,  usually  termed  the  non-intercourse  law,  passed  on 
the  9th  of  February,  1799  (1  U.  S.    Stat.  613),  by  the  1st  section  of 


1  Captain  Murray  was  reimbursed  his  damages,  interest  and  charges,  out  of  the 
Treasury  of  the  United  States,  by  an  act  of  Congress,  January  31,  1805. 

2  2  Cranch,  170;  February  term,  1804.     ^  Supra,  p.  68. 


LITTLE  V.  BARREME  (THE  FLYING  FISH)  207 

which  it  is  enacted,  "That  from  and  after  the  first  day  of  March  next, 
no  ship  or  vessel  owned,  hired  or  employed,  wholly  or  in  part,  by  any 
person  resident  within  the  United  States,  and  which  shall  depart  there- 
from, shall  be  allowed  to  proceed  directly,  or  from  any  intermediate 
port  or  place,  to  any  port  or  place  within  the  territory  of  the  French 
Republic,  or  the  dependencies  thereof,  or  to  any  place  in  the  West 
Indies,  or  elsewhere,  under  the  acknowledged  government  of  France, 
or  shall  be  employed  in  any  traffic  or  commerce  with  or  for  any  person, 
resident  within  the  jurisdiction  or  under  the  authority  of  the  French 
Republic.  And  if  any  ship  or  vessel,  in  any  voyage  thereafter  com- 
mencing, and  before  her  return  within  the  United  States,  shall  be 
voluntarily  carried  or  suffered  to  proceed  to  any  French  port  or  place 
as  aforesaid,  or  shall  be  employed  as  aforesaid,  contrary  to  the  intent 
hereof,  every  such  ship  or  vessel,  together  with  her  cargo,  shall  be 
forfeited ;  and  shall  accrue,  the  one-half  to  the  use  of  the  United  States, 
and  the  other  half  to  the  use  of  any  person  or  persons,  citizens  of  the 
United  States,  who  will  inform  and  prosecute  for  the  same ;  and  shall 
be  liable  to  be  seized,  and  may  be  prosecuted  and  condemned,  in  any 
circuit  or  district  court  of  the  United  States,  which  shall  be  holden 
within  or  for  the  district  where  the  seizure  shall  be  made." 

And  by  the  5th  section,  it  is  enacted,  "That  it  shall  be  lawful  for  the 
President  of  the  United  States  to  give  instructions  to  the  commanders 
of  the  public  armed  ships  of  the  United  States,  to  stop  and  examine 
any  ship  or  vessel  of  the  United  States,  on  the  high  seas,  which  there 
may  be  reason  to  suspect  to  be  engaged  in  any  traffic  or  commerce 
contrary  to  the  true  tenor  hereof ;  and  if,  upon  examination,  it  shall 
appear  that  such  ship  or  vessel  is  bound  or  sailing  to  any  port  or  place 
within  the  territory  of  the  French  Republic,  or  her  dependencies,  con- 
trary to  the  intent  of  this  act,  it  shall  be  the  duty  of  the  commander 
of  such  public  armed  vessel,  to  seize  every  such  ship  or  vessel  engaged 
in  such  illicit  commerce,  and  send  the  same  to  the  nearest  port  in  the 
United  States ;  and  every  such  ship  or  vessel,  thus  bound  or  sailing 
to  any  such  port  or  place,  shall,  upon  due  proof  thereof,  be  liable  to 
the  like  penalties  and  forfeitures  as  are  provided  in  and  by  the  first 
section  of  this  act." 

The  instructions  given  in  consequence  of  this  section,  bear  date  the 
12th  of  March,  1799,  and  are  as  follows: 

Sir: — Herewith  you  will  receive  an  Act  of  Congress  further  to 
suspend  the  commercial   intercourse  between  the  Uinited   States 


208  JUDGMENTS  OF  THE  SUPREME  COURT 

and  France,  and  the  dependencies  thereof,  the  whole  of  which 
requires  your  attention.  But  it  is  the  command  of  the  President, 
that  you  consider  particularly  the  fifth  section  as  part  of  your 
instructions,  and  govern  yourself  accordingly.  A  proper  dis- 
charge of  the  important  duties  enjoined  on  you,  arising  out  of 
this  act,  will  require  the  exercise  of  a  sound  and  impartial  judg- 
ment. You  are  not  only  to  do  all  that  in  you  lies,  to  prevent  all 
intercourse,  whether  direct  or  circuitous,  between  the  ports  of  the 
United  States  and  those  of  France  and  her  dependencies,  in  cases 
where  the  vessels  or  cargoes  are  apparently,  as  well  as  really, 
American,  and  protected  by  American  papers  only ;  but  you  are  to 
be  vigilant  that  vessels  or  cargoes  really  American,  but  covered 
by  Danish  or  other  foreign  papers,  and  bound  to  or  from  French 
ports,  do  not  escape  you. 

Whenever,  on  just  suspicion,  you  send  a  vessel  into  port  to  be 
dealt  with  according  to  the  afore-mentioned  law,  besides  sending 
with  her  all  her  papers,  send  all  the  evidence  you  can  obtain  to 
support  your  suspicions,  and  effect  her  condemnation.  At  the 
same  time  that  you  are  thus  attentive  to  fulfill  the  objects  of  the 
law,  you  are  to  be  extremely  careful  not  to  harass  or  injure  the 
trade  of  foreign  nations  with  whom  we  are  at  peace,  nor  the  fair 
trade  of  our  own  citizens. 

In  the  district  court  of  Massachusetts,  the  vessel  and  cargo  were 
ordered  to  be  restored,  without  damages  or  costs.  Upon  the  question 
of  damages,  the  Honorable  Judge  Lowell  delivered  the  following 
opinion : 

This  libel  is  founded  on  the  statutes  of  the  United  States,  made 
to  suspend  the  commercial  intercourse  between  the  United  States 
and  France,  and  the  dependencies  thereof.  The  libellants  not 
having  produced  sufficient  proof  to  bring  this  vessel  and  cargo 
so  far  within  the  provisions  of  these  statutes  as  to  incur  a  for- 
feiture thereof,  the  same  has  been  decreed  to  be  delivered  to  the 
claimants.  The  question  remaining  to  be  decided  is,  whether  the 
claimants  are  entitled  to  damages,  which  they  suggest  to  have 
arisen  to  them,  or  those  for  whom  they  claim,  by  the  capture  and 
detention. 

The  facts  which  appear  and  are  material  to  this  question  are, 
that  the  vessel  was  owned,  and  her  cargo,  by  Samuel  Goodman,  a 
Prussian  by  birth,  but  now  an  inhabitant  of  the  Danish  island  of 
St.  Thomas :  that  the  master  was  born  in,  and  is  now  of,  the  same 
island,  but  for  several  years  had  been  employed  in  vessels  of  citi- 
zens of  the  United  States,  and  sailed  out  of  our  ports ;  that  he 
speaks  our  language  perfectly,  in  the  accent  of  an  American,  and 
has  the  appearance  of  being  one.     The  mate  is  a  citizen  of  the 


LITTLE  V.  BARREME  (THE  FLYING  FISH)  209 

United  States,  born  here,  and  having  always  continued  such.  The 
rest  of  the  seamen  are  EngHshmen,  Portuguese  and  negroes:  the 
supercargo,  a  Frenchman.  The  vessel  had  carried  a  cargo  of 
provisions  and  dry  goods  from  St.  Thomas  to  Jeremie,  and  was 
returning  thither,  loaded  with  coffee,  when  captured.  That  dur- 
ing the  chase  by  the  American  frigates,  the  master  threw  over- 
board the  log-book,  and  certain  other  papers.  That  there  was  on 
board  a  protest  signed  by  the  master,  supercargo  and  several  sea- 
men, in  which  they  declared  that  the  vessel  had  been  bound  from 
St.  Thomas  to  Port  au  Prince,  and  was  compelled  by  Rigaud's 
vessels  to  go  into  Jeremie,  which  was  false  and  totally  unfounded ; 
and  that,  after  the  capture,  the  master  inquired  of  his  seamen 
whether  they  would  stand  by  him  respecting  this  pretense.  That 
the  statutes  of  the  United  States  prohibiting  intercourse  with 
France  and  its  dependencies  had  been  long  before  known  at  St. 
Thomas,  and  that  it  had  been  since  a  common  practice  there,  to 
cover  American  property  for  the  purpose  of  eluding  the  law. 

If  a  war  of  a  common  nature  had  existed  between  the  United 
States  and  France,  no  question  would  be  made  but  the  false 
papers  found  on  board,  the  destruction  of  the  log-book  and  other 
papers,  would  be  a  sufficient  excuse  for  the  capture,  detention  and 
consequent  damages.  It  is  only  to  be  considered  whether  the  same 
principles,  as  they  respect  neutrals,  are  to  be  applied  to  this  case? 

My  mind  has  found  much  difficulty  in  settling  this  question. 
It  is  one  altogether  new  to  me,  and  arises  from  the  peculiar  im- 
perfect war  existing  at  this  time  between  the  United  States  and 
France.  I  have  embraced  an  opinion  with  much  diffidence,  and 
am  happy  that  it  may  be  revised  in  the  superior  courts  of  the 
United  States. 

On  what  principles  is  the  right  of  belligerent  powers  to  exam- 
ine neutral  vessels,  and  the  dutv  of  neutrals  to  furnish  their  ships 
with  proper  papers,  and  to  avoid  such  conduct  as  may  give  cause 
to  suspect  they  are  other  than  they  pretend  to  be,  founded?  Do 
they  not  necessarily  result  from  a  compromise  of  their  respective 
rights  in  a  state  of  war?  Neither  of  the  belligerent  powers  have 
an  original  and  perfect  right  to  capture  the  property  of  neutrals, 
but  they  have  a  right,  unless  restrained  by  treaty,  however  dis- 
guised or  covered  by  the  aid  of  neutrals.^  It  is  a  breach  of  neu- 
trality to  attempt  to  defeat  this  right.  The  practice  of  nations, 
therefore,  for  many  ages,  has  been  on  the  one  hand  to  exercise 
and  on  the  other  to  prevent  this  examination,  and  to  establish  a 
principle  that  neutral  vessels  shall  be   furnished   with   the  usual 


1  It  is  believed  that  there  has  been  an  error  in  copying  this  passage.  It  is, 
however,  printed  verbatim  from  the  transcript  of  the  record.  The  words  to  be 
supplied  probably  are,  "to  search  for  and  seize  the  property  of  their  enemies," 
to  be  inserted  after  the  word  "treaty." 


210         JUDGMENTS  OF  THE  SUPREME  COURT 

documents  to  prove  their  neutral  state ;  shall  destroy  none  of 
their  papers,  nor  shall  carry  false  papers,  under  the  hazard  of 
being  exposed  to  every  inconvenience  resulting  from  capture,  ex- 
amination and  detention,  except  the  eventual  condemnation  of  the 
property;  and  even  this,  by  some  writers,  has  been  held  to  be 
lawful,  and  enforced  by  some  great  maritime  powers.  Every 
maritime  nation  must  be  involved  in  the  war,  on  the  side  of  one 
or  the  other  of  the  belligerent  powers,  but  from  the  establishment 
of  these  principles.  It  is  not  the  edicts,  statutes  or  regulations  of 
any  particular  nation  which  confer  these  rights,  or  impose  these 
duties.  They  are  the  result  of  common  practice,  long  existing, 
often  recognized,  and  founded  on  pacific  principles.  Whenever  a 
state  of  war  exists,  these  rights  and  duties  exist. 

It  does  not  appear  to  me  to  be  material,  what  is  the  nature  of 
the  war,  general  or  limited.  Nothing  can  be  required  of  neutrals 
but  to  avoid  duplicity.  Sufficient  notice  to  neutrals  of  the  exist- 
ing state  of  hostilities  is  all  that  is  necessary,  to  attach  to  them 
the  duties,  and  to  belligerent  nations,  the  rights,  resulting  from 
a  state  of  war.  This  notice  is  given  in  different  ways,  by  procla- 
mations, heralds,  statutes  published,  and  even  by  the  mere  exist- 
ence of  hostilities  for  a  length  of  time.  As  the  island  of  St. 
Thomas,  being  a  dependency  of  a  neutral  nation,  situated  near 
the  dependencies  of  the  belligerent  power  with  whom  the  United 
States  had  prohibited  intercourse,  and  having  had  long  and  full 
knowledge  of  the  state  of  things,  its  inhabitants  were,  as  I  con- 
ceive, bound  not  to  interfere  or  attempt  to  defeat  the  measures 
taken  by  our  government,  in  their  limited  war.  We  find,  however, 
that  these  attempts  have  been  frequent ;  that  American  vessels 
have,  in  many  instances,  been  covered  in  that  island,  and  the  trade 
which  our  government  has  interdicted  has  been  thus  carried  on. 
It  behooved,  then,  those  of  its  inhabitants  who  would  avoid  the 
inconveniences  of  restraint  to  act  with  openness,  and  avoid  fraud 
and  its  appearances. 

This  construction  of  the  state  in  which  the  United  States  are 
(although  I  am  of  opinion  that,  abstractedly  from  other  consider- 
ations, it  would  give  them  the  rights  of  belligerent  powers),  places 
the  neutral  powers  in  no  new  predicament,  nor  imposes  the  neces- 
sity of  any  new  documents,  or  other  conduct  than  they  were 
obliged  to  from  the  preexisting  state  of  war  between  most  of 
the  great  naval  powers.  On  the  whole,  I  am  of  opinion  that  no 
damages  are  to  be  paid  the  claimants  for  the  capture  and  deten- 
tion, and  do  so  decree,  and  that  each  party  bear  their  own  costs. 

From  this  decree,  the  claimants  appealed  to  the  circuit  court,  where 
it  was  reversed,  and  $8,504  damages  were  given.  The  following  is  the 
decree  of  the  circuit  court : 


LITTLE  V.  BARREME   (THE  FLYING  FISH)  211 

This  court  having  fully  heard  the  parties ;  on  the  said  appeal, 
finds  the  facts  stated  in  the  said  decree  to  be  true,  and  that  the 
said  Little  had  instructions  from  the  President  of  the  United 
States,  on  which  the  action  in  the  said  libel  is  founded,  a  copy  of 
which  instructions  is  on  file.  And  it  further  appearing  that  the 
said  brigantine  and  her  cargo  were  Danish,  and  neutral  property, 
and  that  the  said  George  Little  knew  that  the  said  brig,  at  the 
time  of  the  said  capture,  was  bound  and  sailing  from  Jeremie  to 
St.  Thomas,  a  Danish  and  neutral  port,  and  not  to  any  French 
port;  this  court  is  of  opinion  that  although  Captain  Little  had  a 
right  to  stop  and  examine  the  said  brig,  in  case  of  suspecting  her 
to  be  engaged  in  any  commerce  contrary  to  the  act  of  the  9th  of 
February,  1799,  yet  that  he  was  not  warranted  by  law  to  capture 
and  send  her  to  a  port  of  the  United  States.  That  it  was  at  his 
risk  and  peril,  if  the  property  was  neutral ;  and  that  a  probable 
cause  to  suspect  the  vessel  and  cargo  American,  will  not,  in  such 
case,  excuse  a  capture  and  sending  to  port.  It  is,  therefore,  con- 
sidered, adjudged  and  decreed  by  this  court,  that  the  said  decree 
respecting  damages  and  costs  be,  and  it  is  hereby  reversed,  and 
that  the  said  claimants  recover  their  damages  and  costs. 

The  damages  being  assessed  by  assessors  appointed  by  the  court,  a 
final  sentence  was  pronounced,  from  which  the  captors  appealed  to 
this  court. 

The  cause  was  argued  at  December  term,  1801,  by  Dexter,  for  the 
appellants,  and  by  Martin  and  Mason,  for  the  claimants. 

February  27th,  Marshall,  Ch.  J.,  now  delivered  the  opinion  of  the 
court. — The  Flying  Fish,  a  Danish  vessel,  having  on  board  Danish 
and  neutral  property,  was  captured  on  the  2d  of  December,  1799,  on 
a  voyage  from  Jeremie  to  St.  Thomas,  by  the  United  States  frigate 
Boston,  commanded  by  Captain  Little,  and  brought  into  the  port  of 
Boston,  where  she  was  libelled  as  an  American  vessel  that  had  violated 
the  non-intercourse  law.  The  judge  before  whom  the  cause  was  tried 
directed  a  restoration  of  the  vessel  and  cargo,  as  neutral  property,  but 
refused  to  award  damages  for  the  capture  and  detention,  because,  in 
his  opinion,  there  was  probable  cause  to  suspect  the  vessel  to  be 
American.  On  an  appeal  to  the  circuit  court,  this  sentence  was  re- 
versed, because  the  Flying  Fish  was  on  a  voyage  from,  not  to,  a 
French  port,  and  was,  therefore,  had  she  even  been  an  American  ves- 
sel, not  liable  to  capture  on  the  high  seas. 

During  the  hostilities  between  the  United  States  and  France,  an  act 
for  the  suspension  of  all  intercourse  between  the  two  nations   was 


212  JUDGMENTS  OF  THE  SUPREME  COURT 

annually  passed.  That  under  which  the  Flying  Fish  was  condemned, 
declared  every  vessel  owned,  hired  or  employed,  wholly  or  in  part, 
by  an  American,  which  should  be  employed  in  any  traffic  or  commerce 
with  or  for  any  person  resident  within  the  jurisdiction,  or  under  the 
authority  of  the  French  Republic,  to  be  forfeited,  together  with  her 
cargo ;  the  one-half  to  accrue  to  the  United  States,  and  the  other  to  any 
person  or  persons,  citizens  of  the  United  States,  who  will  inform  and 
prosecute  for  the  same.  The  5th  section  of  this  act  authorizes  the 
President  of  the  United  States  to  instruct  the  commanders  of  armed 
vessels  "to  stop  and  examine  any  ship  or  vessel  of  the  United  States, 
on  the  high  seas,  which  there  may  be  reason  to  suspect  to  be  engaged 
in  any  traffic  or  commerce  contrary  to  the  true  tenor  of  the  act,  and 
if,  upon  examination,  it  should  appear  that  such  ship  or  vessel  is 
bound  or  sailing  to  any  port  or  place  within  the  territory  of  the  French 
Republic  or  her  dependencies,  it  is  rendered  lawful  to  seize  such  vessel 
and  send  her  into  the  United  States  for  adjudication. 

It  is  by  no  means  clear  that  the  President  of  the  United  States, 
whose  high  duty  it  is  to  "take  care  that  the  laws  be  faithfully 
executed,"  and  who  is  commander-in-chief  of  the  armies  and  navies 
of  the  United  States,  might  not,  without  any  special  authority  for  that 
purpose,  in  the  then  existing  state  of  things,  have  empowered  the 
officers  commanding  the  armed  vessels  of  the  United  States,  to  seize 
and  send  into  port  for  adjudication,  American  vessels  which  were  for- 
feited, by  being  engaged  in  this  illicit  commerce.  But  when  it  is  ob- 
served that  the  general  clause  of  the  first  section  of  the  act  which 
declares  that  "such  vessels  may  be  seized,  and  may  be  prosecuted  in 
any  district  or  circuit  court,  which  shall  be  holden  within  or  for  the 
district  where  the  seizure  shall  be  made,"  obviously  contemplates  a 
seizure  within  the  United  States;  and  that  the  5th  section  gives  a 
special  authority  to  seize  on  the  high  seas,  and  limits  that  authority  to 
the  seizure  of  vessels  bound,  or  sailing  to  a  French  port,  the  legisla- 
ture seem  to  have  prescribed  that  the  manner  in  which  this  law  shall 
be  carried  into  execution  was  to  exclude  a  seizure  of  any  vessel  not 
bound  to  a  French  port.  Of  consequence,  however  strong  the  cir- 
cumstances might  be,  which  induced  Captain  Little  to  suspect  the 
Flying  Fish  to  be  an  American  vessel,  they  could  not  excuse  the 
detention  of  her,  since  he  would  not  have  been  authorized  to  detain  her, 
had  she  been  really  American. 

It  was  so  obvious,  that  if  only  vessels  sailing  to  a  French  port  could 


LITTLE  V.  BARREME  (THE  FLYING  FISH)  213 

be  seized  on  the  high  seas,  that  the  law  would  be  very  often  evaded, 
that  this  Act  of  Congress  appears  to  have  received  a  different  con- 
struction from  the  executive  of  the  United  States ;  a  construction  much 
better  calculated  to  give  it  effect.  A  copy  of  this  act  was  transmitted 
by  the  secretary  of  the  navy,  to  the  captains  of  the  armed  vessels,  who 
were  ordered  to  consider  the  5th  section  as  a  part  of  their  instruc- 
tions.    The  same  letter  contained  the  following  clause : 

A  proper  discharge  of  the  important  duties  enjoined  on  you, 
arising  out  of  this  act,  will  require  the  exercise  of  a  sound  and 
an  impartial  judgment.  You  are  not  only  to  do  all  that  in  you 
lies  to  prevent  all  intercourse,  whether  direct  or  circuitous,  between 
the  ports  of  the  United  States  and  those  of  France  or  her  depen- 
dencies, where  the  vessels  are  apparently  as  well  as  really  Ameri- 
can, and  protected  by  American  papers  only,  but  you  are  to  be 
vigilant  that  vessels  or  cargoes,  really  American,  but  covered  by 
Danish  or  other  foreign  papers,  and  bound  to  or  from  French 
ports,  do  not  escape  you. 

These  orders,  given  by  the  executive,  under  the  construction  of  the 
Act  of  Congress  made  by  the  department  to  which  its  execution  was 
assigned,  enjoin  the  seizure  of  American  vessels  sailing  from  a  French 
port.  Is  the  officer  who  obeys  them  liable  for  damages  sustained  by 
this  misconstruction  of  the  act,  or  will  his  orders  excuse  him?  If  his 
instructions  afford  him  no  protection,  then  the  law  must  take  its 
course,  and  he  must  pay  such  damages  as  are  legally  awarded  against 
him ;  if  they  excuse  an  act,  not  otherwise  excusable,  it  would  then  be 
necessary  to  inquire,  whether  this  is  a  case  in  which  the  probable  cause 
which  existed  to  induce  a  suspicion  that  the  vessel  was  American, 
would  excuse  the  captor  from  damages  when  the  vessel  appeared  in 
fact  to  be  neutral  ? 

I  confess,  the  first  bias  of  my  mind  was  very  strong  in  favor  of  the 
opinion,  that  though  the  instructions  of  the  executive  could  not  give 
a  right,  they  might  yet  excuse  from  damages.  I  was  much  inclined 
to  think  that  a  distinction  ought  to  be  taken  between  acts  of  civil  and 
those  of  military  officers ;  and  between  proceedings  within  the  body 
of  the  country  and  those  on  the  high  seas.  That  implicit  obedience 
which  military  men  usually  pay  to  the  orders  of  their  superiors,  which 
indeed  is  indispensably  necessary  to  every  military  system,  appeared 
to  me  strongly  to  imply  the  principle,  that  those  orders,  if  not  to  per- 
form a  prohibited  act,  ought  to  justify  the  person  whose  general  duty 


214  JUDGMENTS  OF  THE  SUPREME  COURT 

it  is  to  obey  them,  and  who  is  placed  by  the  laws  of  his  country  in  a 
situation  which,  in  general,  requires  that  he  should  obey  them.  I  was 
strongly  inclined  to  think  that  where,  in  consequence  of  orders  from 
the  legitimate  authority,  a  vessel  is  seized  with  pure  intention,  the 
claim  of  the  injured  party  for  damages  would  be  against  that  govern- 
ment from  which  the  orders  proceeded,  and  would  be  a  proper  subject 
for  negotiation.  But  I  have  been  convinced  that  I  was  mistaken,  and  I 
have  receded  from  this  first  opinion.  I  acquiesce  in  that  of  my 
brethren,  which  is  that  the  instructions  can  not  change  the  nature  of 
the  transaction,  nor  legalize  an  act  which,  without  those  instructions, 
would  have  been  a  plain  trespass. 

It  becomes,  therefore,  unnecessary  to  inquire  whether  the  probable 
cause  afforded  by  the  conduct  of  the  Flying  Fish  to  suspect  her  of 
being  an  American,  would  excuse  Captain  Little  from  damages  for 
having  seized  and  sent  her  into  port?  since,  had  she  been  an  Amer- 
ican, the  seizure  would  have  been  unlawful.  Captain  Little,  then, 
must  be  answerable  in  damages  to  the  owner  of  this  neutral  vessel, 
and  as  the  account  taken  by  order  of  the  circuit  court  is  not  objection- 
able on  its  face,  and  has  not  been  excepted  to  by  counsel  before  the 
proper  tribunal,  this  court  can  receive  no  objection  to  it. 

There  appears,  then,  to  be  no  error  in  the  judgment  of  the  circuit 
court,  and  it  must  be  affirmed  with  costs. 


HALLET  &  BOWNE  v.  JENKS  AND  OTHERS^ 
Marine  insurance. — Illegal  voyage 

A  vessel  belonging  to  citizens  of  the  United  States,  in  the  year  1799,  driven  by 
distress  into  a  French  port,  and  obliged  to  land  her  cargo,  in  order  to  make 
repairs,  and  prevented  by  the  officers  of  the  French  Government  from  re- 
lading  her  original  cargo,  and  from  taking  away  anything  in  exchange  but 
produce  or  bills,  might  purchase  and  take  away  such  produce,  without  in- 
curring the  penalties  of  the  non-intercourse  act  of  June  13,  1798.^  And 
such  voyage  was  not  illegal,  so  as  to  avoid  the  insurance. 

Hallet  V.  Jenks,  1  Caines'  Gas.  43 ;  s.  c.  1  Gaines'  Rep.  64,  affirmed- 

This  was  a  writ  of  error  to  the  "Court  for  the  Trial  of  Impeach- 
ments, and  the  Correction  of  Errors,  in  the  State  of  New  York,"  un- 
der the  act  of  Congress  of  the  24th  September,  1789,  §  25  (1  U.  S. 


13  Granch,  210;  February  term,  1805.  ''Supra,  p.  56. 


HALLET  &  BOWNE  v.  JENKS  215 

Stat.  85),  which  gives  the  Supreme  Court  of  the  United  States,  ap- 
pellate jurisdiction  upon  a  judgment  in  the  highest  court  of  a  State, 
in  which  a  decision  in  the  suit  could  be  had,  where  is  drawn  in  ques- 
tion the  construction  of  any  clause  of  a  statute  of  the  United  States, 
and  the  decision  is  against  the  right,  privilege  or  exemption,  specially 
set  up  or  claimed  by  either  party,  under  such  statute. 

The  action  was  upon  a  policy  of  insurance,  and  the  only  question  to 
be  decided  by  this  court  was,  whether  the  risk  insured  was  illegal, 
under  the  act  of  Congress  (commonly  called  the  non-intercourse  law; 
of  the  13th  June,  1798  (1  U.  S.  Stat.  565).  For  although  another 
question  appears  to  arise  upon  the  record,  viz.,  whether  a  condemna- 
tion in  a  foreign  court,  as  enemy's  property,  be  conclusive  evidence 
of  that  fact,  yet  this  court  is  prohibited  by  the  same  25th  section 
of  the  act  of  1789,  to  consider  any  other  question  than  that  which 
respects  the  construction  of  the  statute  in  dispute. 

On  the  trial  of  the  general  issue,  a  special  verdict  was  found,  con- 
taining the  following  facts: 

That  on  the  27th  day  of  April,  1799,  the  defendants,  for  a  premium 
of  25  per  cent,  insured  for  the  plaintiffs  against  all  risks,  $1,000,  upon 
25,000  pounds  weight  of  coffee,  valued  at  20  cents  per  pound,  on 
board  the  sloop  Nancy,  from  Hispaniola  to  St.  Thomas.  That  in  the 
margin  of  the  policy  was  inserted  a  clause  in  the  following  words, 
"warranted  the  property  of  the  plaintiffs,  all  Americans,"  but  that  the 
words  "all  Americans,"  were  added,  after  the  policy  was  subscribed ; 
that  the  sloop  Nancy  was  built  at  Rhode  Island,  and  belonged  to  citi- 
zens of  the  United  States,  resident  in  Rhode  Island,  as  well  when  she 
left  that  State,  as  at  the  time  of  her  capture,  and  being  chartered  by 
the  plaintiffs,  sailed  from  Newport,  in  Rhode  Island,  on  the  12th  day 
of  December,  in  the  year  1798,  on  her  first  voyage  to  the  Havana; 
that  in  the  course  of  the  said  voyage,  she  was  compelled,  being  in  dis- 
tress, to  put  into  Cape  Frangois,  in  the  island  of  Hispaniola,  a  country 
in  the  possession  of  France,  where  she  arrived  on  the  5th  day  of 
January,  1799;  that  the  master  and  supercargo  of  the  sloop  were  part 
owners  of  the  cargo,  and  two  of  the  plaintiffs  in  this  suit ;  that  having 
so  put  into  Cape  Frangois,  the  cargo  was  landed  to  repair  the  vessel ; 
that  the  public  officers  acting  under  the  French  Government  there, 
took  from  them  nearly  all  the  provisions  on  board  the  sloop,  and  the 
master  and  supercargo  were  permitted  to  sell,  and  did  sell,  the  re- 
mainder, to  different  persons  there ;  that  the  master  and  supercargo 


216         JUDGMENTS  OF  THE  SUPREME  COURT 

made  a  contract  with  the  public  officers,  by  which  they  were  to  be  paid 
for  the  provisions  in  thirty  days,  but  the  payment  was  not  made ;  that, 
with  the  proceeds  of  the  remaining  parts  of  the  cargo,  they  purchased 
the  whole  of  the  cargo  which  was  on  board,  at  the  time  of  the  cap- 
ture, and  also  seventeen  hogsheads  of  sugar,  which  they  sent  home  to 
New  York,  on  freight ;  that  the  said  officers  forbade  the  said  master 
and  supercargo  of  the  sloop,  from  taking  on  board  the  cargo  landed 
from  the  said  vessel,  or  from  conveying  from  the  said  island  any 
specie,  by  reason  whereof  they  were  compelled  to  sell  the  same,  and 
to  take  the  produce  of  that  country  in  payment.  That  the  sloop,  with 
30,000  weight  of  coffee  on  board,  25,000  pounds  weight  of  which  was 
intended  to  be  insured  by  the  present  policy,  sailed  from  Cape  Fran- 
cois, on  the  23d  day  of  February,  in  the  year  last  aforesaid,  on  the 
voyage  mentioned  in  the  policy  of  insurance,  having  on  board  the 
usual  documents  of  an  American  vessel ;  that  the  sloop,  in  the  course 
of  her  said  voyage,  was  captured  by  a  British  frigate,  and  carried 
into  the  island  of  Tortola,  and  vessel  and  cargo  libelled,  as  well  for 
being  the  property  of  the  enemies  of  Great  Britain,  as  for  being  the 
property  of  American  citizens,  trading  contrary  to  the  laws  of  the 
United  States ;  that,  at  the  time  of  the  capture  of  the  sloop,  besides 
the  documents  aforesaid,  the  following  paper  was  found  on  board : 

Liberty — Safe  Conduct — Equality 

At  the  Cape,  11th  Termidor,  sixth  year  of  the  French  Republic, 
one  and  indivisible.  The  general  of  division  and  private  agent  of 
the  executive  directory  at  St.  Domingo,  requests  the  officers  of 
the  French  navy  and  privateers  of  the  republic,  to  let  pass  freely 

the  American  vessel  called  the  ,  master,  property 

of  Mr.  E.  Born  Jenks,  merchants  at  Providence,  State  of  Rhode 
Island,  in  the  United  States,  arrived  from  the  said  place  to  the 
Cape  Frangois,  for  trade  and  business.  The  citizen  French  con- 
sul, in  the  place  where  the  said  vessel  shall  be  fitted  out,  is  in- 
vited to  fill  with  her  name,  and  the  captain's,  the  blank  left  on 
these  presents;  in  attestation  of  which,  he  will  please  to  set  his 
hand  hereupon. 

(Signed)  J.  Hedouville. 
Gauthier, 
the  general  secretary  of  the  agency. 

Which  paper  was  received  on  board  the  sloop,  at  Cape  Frangois, 
and  was  on  board  when  she  left  that  place ;  that  the  property  insured 


HALLET  &  BOWNE  v.  JENKS  217 

by  the  policy  aforesaid  was  claimed  by  the  said  Zebedee  Hunt,  and 
was  condemned  by  a  sentence  of  the  said  court  of  vice-admiralty,  in 
the  following  words :  "That  the  said  sloop  Nancy,  and  cargo  on  board, 
claimed  by  the  said  Zebedee  Hunt,  as  by  the  proceedings  will  show 
to  be  enemy's  property,  and  as  such,  or  otherwise,  liable  to  confisca- 
tion, and  condemned  the  same  as  good  and  lawful  prize  to  the  cap- 
tors." That  the  plaintiffs  are  Americans,  and  were  owners  of  the 
property  insured,  and  that  the  same  was  duly  abandoned  to  the  under- 
writers. 

That  part  of  the  act  of  Congress,  which  the  underwriters  contended 
had  been  violated  bv  the  defendants  in  error,  is  as  follows: 

§  1.  That  no  ship  or  vessel,  owned,  hired  or  employed,  wholly 
or  in  part,  by  any  person  resident  within  the  United  States,  and 
which  shall  depart  therefrom,  after  the  first  day  of  July  next, 
shall  be  allowed  to  proceed  directly,  or  from  any  intermediate 
port  or  place,  to  any  port  or  place  within  the  territory  of  the 
French  Republic,  or  the  dependencies  thereof,  or  to  any  place 
in  the  West  Indies,  or  elsewhere,  under  the  acknowledged  gov- 
ernment of  France,  or  shall  be  employed  in  any  traffic  or  commerce 
with  or  for  any  person,  resident  within  the  jurisdiction,  or  under 
the  authority  of  the  French  Republic.  And  if  any  ship  or  vessel, 
in  any  voyage  thereafter  commencing,  and  before  her  return 
within  the  United  States,  shall  be  voluntarily  carried,  or  suffered 
to  proceed  to  any  French  port  or  place  as  aforesaid,  or  shall  be 
employed  as  aforesaid,  contrary  to  the  intent  hereof,  every  such 
ship  or  vessel,  together  with  her  cargo,  shall  be  forfeited,  and 
shall  accrue,  etc. 

The  second  section  enacts,  that  after  the  first  of  July,  1798.  no  clear- 
ance for  a  foreign  voyage  shall  be  granted  to  any  ship  or  vessel  owned, 
hired  or  employed,  wholly  or  in  part,  by  any  person  resident  within 
the  United  States,  until  a  bond  shall  be  given,  in  a  sum  equal  to  the 
value  of  the  vessel  and  cargo,  "with  condition,  that  the  same  shall 
not,  during  her  intended  voyage,  or  before  her  return  within  the 
United  States,  proceed  or  be  carried,  directly  or  indirectly,  to  any 
port  or  place  within  the  territory  of  the  French  Republic,  or  the  de- 
pendencies thereof,  or  any  place  in  the  West  Indies,  or  elsewhere, 
under  the  acknowledged  government  of  France,  unless  by  distress  of 
weather,  or  want  of  provisions,  or  by  actual  force  or  violence,  to  be 
fully  proved  and  manifested  before  the  acquittance  of  such  bond;  and 
that  such  vessel  is  not,  and  shall  not,  be  employed,  during  her  hitended 


218  JUDGMENTS  OF  THE  SUPREME  COURT 

voyage,  or  before  her  return,  as  aforesaid,  in  any  traffic  or  commerce 
with  or  for  any  person  resident  within  the  territory  of  that  republic, 
or  in  any  of  the  dependencies  thereof."  June  13,  1798.  (1  U.  S. 
Stat.  565.) 

Mason,  for  the  plaintiffs  in  error. — If  the  insurance  was  upon  an 
illegal  transaction,  the  defendants  in  error  have  no  right  to  recover. 
The  only  question  for  the  consideration  of  this  court  is,  whether  it  be 
a  transaction  prohibited  by  the  act  of  Congress.  If  the  purchase  of 
this  cargo  in  Cape  Francois  was  lawful,  the  policy  is  good. 

The  first  section  of  the  act  has  two  branches,  and  contemplates  two 
separate  offenses:  1st.  That  no  vessel  shall  be  allowed  to  go  to  a 
French  port.  But  this  prohibition  must  be  subject  to  the  general  prin- 
ciple, that  the  act  of  God,  or  of  the  public  enemy,  shall  be  an  excuse. 
2d.  That  if  driven  into  such  port  by  distress,  or  involuntarily  carried 
in,  yet  there  shall  be  no  trade  or  traffic.  The  words  are,  "if  any  vessel 
shall  be  voluntarily  carried,  or  suffered  to  proceed  to  any  French  port 
or  place  as  aforesaid,  or  shall  be  employed  as  aforesaid."  The  going 
in  must  be  voluntary,  but  the  legislature  carefully  omit  the  word  vol- 
untarily, when  speaking  of  the  offense  of  trading,  for  all  trading  must 
be  voluntary;  it  can  not  be  by  compulsion.  The  object  was  to  prevent 
intercourse,  and  the  statute  only  makes  the  same  saving  of  the  for- 
feiture which  a  court  would  have  made  without  such  a  saving  clause. 

The  condition  of  the  bond  mentioned  in  the  second  section  confinns 
this  construction  of  the  first.  It  is  divided  into  two  clauses,  agreeable 
to  the  two  offenses  to  be  provided  against.  The  proviso  "unless  by 
distress  of  weather,"  etc.,  is  annexed  only  to  the  offense  of  going  into 
the  port,  but  there  is  no  saving  or  exception  as  to  the  offense  of  trad- 
ing. If  she  had  not  been  driven  in  by  distress  of  weather,  she  would 
have  been  liable  to  forfeiture,  under  the  first  offense.  But  having 
been  employed  in  traffic  with  persons  resident,  etc.,  she  is  equally 
liable  to  forfeiture,  under  the  second,  and  the  condition  of  the  bond 
has  been   substantially  broken. 

The  special  verdict  states,  "that  the  master  and  supercargo  were 
permitted  to  sell,  and  did  sell,  the  residue  of  the  cargo,  to  different 
persons  there."  Here  was  no  compulsion.  This  selling  was  a  viola- 
tion of  the  law ;  but  it  is  not  that  which  avoids  this  policy.  The  fault 
was,  that  with  the  proceeds  of  those  sales,  the  plaintiffs  below  pur- 
chased the  cargo  insured.    There  was  no  compulsion  to  do  this,  except 


HALLET  &  BOWNii  v.  JENKS  219 

\vhat  I  shall  presently  notice,  as  stated  in  the  verdict.  It  will  probably 
be  contended,  tliat  the  following  words  of  the  verdict  show  a  com- 
pulsion, viz.,  "that  the  said  officers  forbade  the  said  master  and  super- 
cargo from  taking  on  board  the  cargo  landed  from  the  said  vessel, 
or  from  conveying  from  the  said  island  any  specie,  by  reason  whereof, 
they  were  compelled  to  sell  the  same,  and  to  take  the  produce  of  that 
country  in  payment."  But  this  is  only  the  reasoning  of  the  jury,  and 
the  words,  by  reason  whereof,  show  what  kind  of  compulsion  it  was, 
and  that  it  was  not  that  inevitable  necessity  which  can  excuse  the  ex- 
press violation  of  the  law.  The  owners  ought  to  have  said  to  them., 
if  you  forbid  us  to  take  away  our  property,  we  must  leave  it,  and 
look  to  our  Government  for  an  indemnification ;  for  they  have  for- 
bidden us  to  sell  it  to  you,  or  to  purchase  a  new  cargo.  The  forbid- 
ding them  to  relade  their  goods,  and  to  take  away  specie,  was  no  com- 
pulsion to  purchase  produce.  The  verdict  does  not  state  that  the 
master  or  supercargo  attempted  to  resist  the  force ;  it  may  be  wholly 
a  colorable  transaction. 

The  act  of  the  27th  February,  1800  (2  U.  S.  Stat.  7),  shows  what 
the  construction  of  that  of  1798  ought  to  be.  The  third  section  of  the 
former  provides,  that  in  case  the  vessel  shall  be  compelled,  by  distress 
or  superior  force,  to  go  into  a  French  port,  and  shall  there  necessarily 
unlade  and  deliver,  or  shall  be  deprived  of  any  cargo  then  on  board, 
the  master  may  receive  payment  in  bills  of  exchange,  money  or  bullion, 
and  not  otherwise,  "and  shall  not  thereby  be  understood  to  contravene 
this  law."  This  is  a  clear  implication,  that  if  there  had  not  been  such 
an  express  permission  to  receive  payment  in  bills  of  exchange,  money 
or  bullion,  it  would  have  been  a  contravention  of  the  law ;  and  that 
law,  excepting  this  provision,  is  substantially  the  same  as  the  law  of 
1798. 

Harper,  contra. — I  might  safely  agree  to  the  first  position  taken  by 
ihe  opposite  counsel,  that  the  first  section  of  the  act  of  1798  creates 
two  distinct  offenses.  But  this  is  not  so.  The  whole  constitutes  but 
one  oflFense.  How  is  a  ship  to  be  employed  in  traffic  ?  She  must  bring 
and  carry.  If  she  did  not  go  voluntarily,  she  was  not  employed  in 
trafficking.  If  the  master  sell  the  cargo,  under  such  circumstances,  the 
vessel  is  not  employed  in  traffic.  But  if  the  act  creates  two  separate 
oflFenses,  how  is  the  vessel  employed  in  the  traffic?  She  did  not  carry 
the  cargo  there  voluntarily.     But  it  being  there,  and  landed,  neces- 


220         JUDGMENTS  OF  THE  SUPREME  COURT 

sarily  landed,  how  is  the  vessel  concerned  in  the  sales  and  purchases 
made  by  the  master?  The  necessity  of  repairing  the  vessel  is  as  much 
an  excuse  for  landing  the  cargo,  as  stress  of  weather  was  for  going 
in.  The  master  was  forbidden  to  relade  it.  But  a  difference  is  taken 
between  prohibition  and  prevention.  It  is  said,  that  the  forbidding  is 
not  preventing.  But  by  whom  was  the  prohibition?  By  the  officers 
of  the  Government,  having  authority  and  power  to  carry  the  prohibi- 
tion into  effect.    It  was,  therefore,  actual  prevention. 

What  was  the  mischief  intended  to  be  remedied  by  the  act  of  Con- 
gress? Not  such  a  sale  as  this.  It  was  to  prevent  a  voluntary  inter- 
course, not  to  prevent  citizens  of  the  United  States  from  rescuing 
their  property  from  impending  loss.  What  is  traffic?  A  contract  by 
consent  of  both  parties.  If  one  is  under  compulsion,  it  is  no  contract, 
no  traffic.  The  transaction  disclosed  by  the  verdict,  is  only  the  means 
of  saving  property  from  a  total  loss.  The  owners  were  not  obliged 
to  abandon,  as  the  gentleman  contends,  property  thus  put  in  jeopardy. 
The  master  and  supercargo  were  not  free  agents.  They  were  not 
obliged  to  take  bills,  which  they  knew  would  not  be  paid.  If  I  could 
have  had  a  doubt  upon  this  case  it  would  have  been  removed  by  the 
decisions  of  the  circuit  courts  of  the  United  States.  In  a  case  before 
one  of  your  Honors,^  in  Baltimore,  a  vessel  had  brought  home  from 
the  French  West  Indies,  a  cargo  of  the  produce  of  those  islands,  after 
having  been  compelled  to  go  in  and  sell  her  outward  cargo ;  and  it 
was  decided,  that  the  case  was  not  within  this  act  of  Congress.  A 
similar  case  is  understood  to  have  been  decided  by  another  of  your 
Honors,^  in  New  York.  If  those  cases  were  not  within  the  law  I  am 
warranted  in  saying,  this  is  not. 

Those  decisions  produced  the  third  section  of  the  act  of  1800,  which 
the  gentleman  has  cited,  and  which  was  introduced,  to  shut  the  door 
that  had  been  left  open.  It  was  perceived,  that  the  law,  as  it  stood 
before,  would  give  an  opportunity  of  fraud.  The  third  section  was 
enacted  to  take  away  the  temptation ;  because,  although  there  might 
be  cases,  clear  of  fraud,  it  was  thought  best  to  sacrifice  these  par- 
ticular cases,  that  fraud  might  be  prevented  in  others.  This  section, 
therefore,  has  given  a  sanction  to  the  decisions  of  the  circuit  courts. 


1  Judge  Washington. 

-  Judge  Paterson,  in  September,  1799,  in  the  case  of  Richardson  and  others, 
cited  in  1  Caines'  Rep.,  p.  63. 


HALLET  &  BOWNE  v.  JENKS  221 

Key,  in  reply. — It  is  clear,  that  there  are  two  distinct  prohibitions 
in  the  act.  The  two  parts  of  the  section  are  connected  by  the  dis- 
junctive "or,"  and  not  by  the  copulative  "and."  This  is  rendered 
still  more  evident,  by  the  form  of  the  condition  of  the  bond  described 
in  the  second  section. 

Whenever  you  rely  on  the  necessity  of  the  case,  to  justify  your  acts, 
you  must  not  go  beyond  the  necessity.  All  beyond  is  voluntary.  In 
this  case,  it  might  go  to  the  landing,  and  to  the  seizure  of  part,  but 
not  to  the  sale  of  the  residue.  The  probability  of  loss  is  not  neces- 
sity. If  they  took  produce,  it  was  only  to  avoid  a  greater  loss.  It 
was  not  an  inevitable  necessity.  Another  fact  shows  that  it  was 
trading;  not  merely  taking  on  board,  to  bring  home,  property  which 
they  were  compelled  to  receive.  She  was  not  coming  home  with  the 
property,  when  she  was  captured,  but  going  on  a  trading  voyage.  And 
the  French  pass  states  that  she  came  to  Cape  Frangois  for  trade  and 
business.  The  intention  of  the  act  was  to  prevent  all  trading  and 
intercourse  with  France  or  her  dependencies. 

In  the  case  at  Baltimore,  before  his  Honor  Judge  Washington. 
the  vessel  returned  directly  home  to  Baltimore,  with  produce,  which 
bhe  had  been  compelled  to  take  or  abandon. 

Mason,  on  the  same  side. — It  is  said,  there  must  be  a  preexisting 
intention  to  go  to  a  French  port.  If  the  sloop  had  arrived  safe  at  the 
Havana,  and  been  there  sold  to  an  agent  of  the  French  Government, 
it  is  clear,  she  would  have  been  liable  to  forfeiture.  So,  if  the  French 
agent,  who  signed  the  passport,  had  freighted  the  vessel.  These  cases 
show  that  a  preexisting  intention  is  not  necessary.  The  construction 
contended  for  would,  indeed,  open  a  wide  door  to  fraud,  as  the  gen- 
tleman has  contended.  It  would  only  be  necessary  to  start  a  plank, 
in  sight  of  the  port,  and  then  go  in  to  stop  the  leak,  and  the  whole  law 
is  evaded. 

March  6,  1805.  Marshall,  Ch.  J.,  delivered  the  opinion  of  the 
court,  to  the  following  effect : — The  court  is  of  opinion,  according  to 
the  best  consideration  they  have  been  able  to  give  the  subject,  that 
this  case  is  not  within  the  act  of  Congress  of  1798,  usually  called  the 
non-intercourse  law. 

It  is  contended  by  the  counsel  for  the  defendant,  that  the  circum- 
stances stated  in  the  special  verdict,  do  not  show  an  absolute  necessity 


222         JUDGMENTS  OF  THE  SUPREME  COURT 

for  the  trading  therein  described.  And  it  is  said,  the  plaintiff  might 
have  abandoned  the  property,  and  sought  redress  of  his  government; 
and  that  it  was  his  duty  to  do  so,  rather  than  violate  the  laws  of  his 
country.  But  the  court  is  of  opinion,  that  the  act  of  Congress  did  not 
impose  such  terms  upon  a  person  who  was  forced  by  stress  of  weather 
to  enter  a  Frencli  port,  and  land  his  cargo,  and  was  prevented  by  the 
public  officers  of  that  port  to  relade  and  carry  it  away.  Even  if  an 
actual  and  general  war  had  existed  between  this  country  and  France, 
and  the  plaintiff"  had  been  driven  into  a  French  port,  a  part  of  his 
cargo  seized,  and  he  had  been  permitted  by  the  officers  of  the  port 
to  sell  the  residue,  and  purchase  a  new  cargo,  I  am  of  opinion,  that 
it  would  not  have  been  deemed  such  a  trafffc  with  the  enemy,  as  would 
vitiate  the  policy  upon  such  new  cargo.  The  terms  of  the  act  of  Con- 
gress seem  to  imply  an  intentional  offense  on  the  part  of  the  owners. 

The  case  put,  of  a  French  agent  going  to  the  Havana,  and  there 
purchasing  the  cargo  for  the  use  of  the  French  Government,  under 
a  preconcert  with  the  owners,  would  certainly  be  an  offense  against 
the  law ;  but  when  there  is  no  such  intention ;  when  the  vessel  has  been 
absolutely  forced,  by  stress  of  weather,  to  go  into  a  French  port,  and 
land  her  cargo ;  when  part  has  been  seized  for  the  use  of  the  Govern- 
ment of  France,  and  the  master  has  been  forbidden  by  the  public 
officers  of  the  port  to  relade  the  residue,  and  to  sell  it  for  any  thing 
valuable,  except  the  produce  of  the  country ;  the  mere  taking  away 
such  produce,  can  not  be  deemed  such  a  traffic  as  is  contemplated  by 
the  act  of  Congress. 

Judgment  affirmed,  with  costs.^ 


SANDS  V.  KNOX^ 

Non-intercourse  act 

The  non-intercourse  act  of  June  13,  1798,^  did  not  impose  any  disability  upon 
vessels  of  the  United  States,  sold  bona  fide  to  foreigners,  residing  out  of 
the  United  States,  during  the  existence  of  that  act. 

Error  to  the  Court  for  the  Trial  of  Impeachments  and  the  Cor- 
rection of  Errors,  in  the  State  of  New  York. 


1  See  the  opinion  of  the  supreme  court  of  New  York,  in  this  case,  in  1 
Caines'  Rep.  64,  and  that  of  the  High  Court  for  the  Trial  of  Impeachments  and 
Correction  of  Errors,  in  the  State  of  New  York,  delivered  by  Lansing,  Chancel- 
lor, in  1  Caines'  Cases  in  Error,  p.  43. 

23  Cranch,  499;  February  term,  1806. 

*  Supra,  p.  56.  m 


SANDS  y.  KNOX  223 

Thomas  Knox,  administrator,  with  the  will  annexed,  of  Raapzat 
Heyleger,  a  subject  of  the  King  of  Denmark,  brought  an  action  of 
trespass  vi  et  armis,  in  the  supreme  court  of  judicature  of  the  State 
of  New  York,  against  Joshua  Sands,  collector  of  the  customs  for  the 
port  of  New  York,  for  seizing  and  detaining  a  schooner  called  the 
Jennett,  with  her  cargo. 

The  defendant,  Sands,  pleaded  in  justification,  that  he  was  collector, 
etc.,  and  that  after  the  1st  day  of  July,  1798,  viz.,  on  the  16th  of 
November,  1798,  the  said  schooner,  then  being  called  the  Juno,  was 
owned  by  a  person  resident  within  the  United  States,  at  Middletown, 
in  Connecticut,  and  cleared  for  a  foreign  voyage,  viz.,  from  Middle- 
town  to  the  island  of  St.  Croix,  a  bond  being  given  to  the  use  of  the 
United  States,  as  directed  by  the  statute,  with  condition  that  the  ves- 
sel should  not,  during  her  intended  voyage,  or  before  her  return  within 
the  United  States,  proceed,  or  be  carried,  directly  or  indirectly,  to 
any  port  or  place  within  the  territory  of  the  French  Republic,  or  the 
dependencies  thereof,  or  any  place  in  the  West  Indies,  or  elsewhere, 
under  the  acknowledged  government  of  France,  unless  by  stress  of 
weather,  or  want  of  provisions,  or  by  actual  force  or  violence,  to  be 
fully  proved  and  manifested  before  the  acquittance  of  such  bond,  and 
that  such  vessel  was  not,  and  should  not  be,  employed,  during  her 
said  intended  voyage,  or  before  her  return  as  aforesaid,  in  any  traffic 
or  commerce  with,  or  for,  any  person  resident  within  the  territory  of 
that  republic,  or  in  any  of  the  dependencies  thereof.  That  afterwards, 
on  the  8th  of  December,  1798,  she  did  proceed,  and  was  voluntarily 
carried  from  Middletown  to  the  island  of  St.  Croix,  in  the  West 
Indies,  and  from  thence,  before  her  return  within  the  United  States, 
to  Port  de  Paix  in  the  island  of  St.  Domingo,  being  then  a  place  under 
the  acknowledged  government  of  France,  without  being  obliged  to  do 
so  by  stress  of  weather,  or  want  of  provisions,  or  actual  force  and 
violence,  whereby,  and  according  to  the  form  of  the  statute,  the  said 
schooner  and  her  cargo  became  forfeited,  the  one-half  to  the  use  of 
the  United  States,  and  the  other  half  to  the  informer;  by  reason 
whereof,  the  defendant,  being  collector,  etc.,  on  the  1st  of  July,  1799, 
arrested,  entered  and  took  possession  of  the  said  vessel  and  cargo, 
for  the  use  of  the  United  States,  and  detained  them  as  mentioned 
in  the  declaration,  and  as  it  was  lawful  for  him  to  do. 

The  plaintiff,  in  his  replication,  admitted  that  the  defendant  was  col- 
lector, etc.,  that  at  the  time  she  sailed  from  Middletown  for  St.  Croix, 


224  JUDGMENTS  OF  THE  SUPREME  COURT 

she  was  owned  by  a  person  then  resident  in  the  United  States;  and 
that  a  bond  was  given  as  stated  in  the  plea ;  but  alleged,  that  she  sailed 
directly  from  Middletown  to  St.  Croix,  where  she  arrived  on  the  1st 
of  February,  1799,  the  said  island  of  St,  Croix  then  and  yet  being 
under  the  government  of  the  King  of  Denmark.  That  one  Josiah 
Savage,  then  and  there  being  the  owner  and  possessor  of  the  said  ves- 
sel, sold  her,  for  a  valuable  consideration,  at  St.  Croix,  to  the  said 
Raapzat  Heyleger,  who  was  then,  and  until  his  death  continued  to  be, 
a  subject  of  the  King  of  Denmark,  and  resident  at  St.  Croix,  who,  on 
the  1st  of  March  following,  sent  the  said  vessel,  on  his  own  account, 
and  for  his  own  benefit,  on  a  voyage  from  Port  de  Paix  to  St.  Croix, 
without  that,  that  she  was  at  any  otlier  time  carried,  etc. 

To  this  replication,  there  was  a  general  demurrer  and  joinder,  and 
judgment  for  the  plaintiff,  which,  upon  a  writ  of  error  to  the  court 
for  the  trial  of  impeachments  and  correction  of  errors,  in  the  State  of 
New  York,  was  affirmed.  The  defendant  now  brought  his  writ  of 
error  to  this  court,  under  the  25th  section  of  the  judiciary  act  of  the 
United  States.     (1  U.  S.  Stat.  85.) 

The  only  question  which  could  be  made  in  this  court,  was  upon  the 
construction  of  the  act  of  Congress,  of  June  13,  1798  (1  U.  S.  Stat. 
565),  commonly  called  the  non-intercourse  act;  the  first  section  of 
which  is  in  these  words :  "That  no  ship  or  vessel,  owned,  hired  or 
employed,  wholly  or  in  part,  by  any  person  resident  within  the  United 
States,  and  which  shall  depart  therefrom,  after  the  1st  day  of  July 
next,  shall  be  allowed  to  proceed,  directly,  or  from  any  intermediate 
port  or  place,  to  any  port  or  place  within  the  territory  of  the  French 
Republic,  or  the  dependencies  thereof,  or  to  any  place  in  the  West 
Indies,  or  elsewhere,  under  the  acknowledged  government  of  France, 
or  shall  be  employed  in  any  traffic  or  commerce  with  or  for  any  person, 
resident  within  the  jurisdiction  or  under  the  authority  of  the  French 
Republic.  And  if  any  ship  or  vessel,  in  any  voyage  thereafter  com- 
mencing, and  before  her  return  within  the  United  States,  shall  be 
voluntarily  carried,  or  suffered  to  proceed,  to  any  French  port  or  place 
as  aforesaid,  or  shall  be  employed  as  aforesaid,  contrary  to  the  intent 
hereof,  every  such  ship  or  vessel,  together  with  her  cargo,  shall  be 
forfeited,  and  shall  accrue,  the  one-half  to  the  use  of  the  United 
States,  and  the  other  half  to  the  use  of  any  person  or  persons,  citizens 
of  the  United  States,  who  will  inform  and  prosecute  for  the  same ; 
and  shall  be  liable  to  be  seized,  prosecuted  and  condemned,   in  any 


SANDS  V.  KNOX  225 

circuit  or  district  court  of  the  United  States,  which  shall  be  holden 
within  and  for  the  district  where  the  seizure  shall  be  made." 

The  condition  of  the  bond  stated  in  the  plea,  corresponded  exactly 
with  that  required  by  the  second  section  of  the  act.  The  seventieth 
section  of  the  act  of  2d  of  March,  1799  (1  U.  S.  Stat.  678),  makes  it 
the  duty  of  the  several  officers  of  the  customs,  to  seize  any  vessel 
liable  to  seizure,  under  that  or  any  other  act  of  Congress  respecting 
the  revenue. 

C.  Lee,  for  the  plaintiff  in  error. — The  question  is,  whether  the  act 
of  Congress  does  not  impose  a  disability  upon  the  vessel  itself  ? 

This  vessel  was  clearly  within  the  literal  prohibition  of  the  act. 
She  was  "owned  wholly  by  a  person  resident  within  the  United 
States."  She  did  "depart  therefrom,  after  the  1st  day  of  July  (then) 
next."  She  did  "proceed  from  an  intermediate  port  or  place,  to  a 
place  in  the  West  Indies,  under  the  acknowledged  government  of 
France."  She  was  also  a  vessel  Avhich,  "in  a  voyage  thereafter  com- 
mencing, and  before  her  return  within  the  United  States,"  was  "vol- 
untarily carried,  or  suffered  to  proceed,  to  a  French  port."  She  had, 
therefore,  done  and  suffered  every  act  which,  according  to  the  letter 
of  the  law,  rendered  her  liable  to  forfeiture,  seizure  and  condemna- 
tion. 

It  is  true,  that  the  decision  of  this  court,  in  the  case  of  the  Charm- 
ing Betsy,  2  Cr.  115,  seems,  at  first  view,  to  be  against  us.  But  the 
present  question  was  not  made,  and  could  not  arise,  in  that  case, 
because  that  vessel  had  not  been  to  a  French  port,  nor  had  she  re- 
turned from  a  French  port  to  the  United  States.  If  such  a  trade 
as  the  present  case  presents  were  to  be  permitted,  the  whole  object  of 
the  non-intercourse  act  would  be  frustrated.  A  vessel  of  the  United 
States  may,  according  to  the  judgment  in  the  case  of  the  Charming 
Betsy,  be  sold  and  transferred  to  a  Dane,  and  he  may  trade  with  her 
as  he  pleases ;  but  we  say,  it  is  with  this  proviso,  that  he  does  not 
send  her  from  a  French  port  to  the  United  States.  He  takes  the 
vessel  with  that  restriction.  If  he  trades  to  the  United  States,  he  is 
bound  to  know  and  respect  their  laws.  The  intention  of  the  law  was 
not  only  to  prevent  American  citizens,  but  American  vessels,  from 
carrying  on  an  intercourse  with  French  ports. 

The  case  of  the  Charming  Betsy  was  under  the  act  of  February, 
1800;  but  the  present  case  arises  under  that  of  1798,  which  is  very 


226  JUDGMENTS  OF  THE  SUPREME  COURT 

different  in  many  respects.  The  opinion  in  that  case,  so  far  as  it 
was  not  upon  points  necessarily  before  the  court,  is  open  to  examina- 
tion. Neither  the  words  of  the  law,  nor  the  form  of  the  bond,  make 
any  exception  of  the  case  of  the  sale  and  transfer  of  the  vessel,  be- 
fore her  return.  If,  therefore,  a  sale  is  made,  it  must  be  subject  to 
the  terms  of  the  law;  and  although  the  vessel  may  not  be  liable  to 
seizure  upon  the  high  seas,  yet  upon  her  return  to  the  United  States, 
it  became  the  duty  of  the  custom-house  officer  to  seize  her.  The  law 
ought  to  be  so  construed  as  to  carry  into  effect  the  object  intended. 
That  object  was,  to  cut  off  all  intercourse  with  France,  and  by  that 
means  compel  her  to  do  justice  to  the  United  States.  But  if  this 
provision  of  the  law  is  to  be  so  easily  eluded,  France  will  be  in  a 
better  situation  than  before,  for  she  will  receive  her  usual  supplies, 
and  we  shall  be  weakened  by  the  loss  of  the  carrying  trade. 

Bayard,  contra,  was  stopped  by  the  court. 

Marshall,  Ch.  J. — If  the  question  is  not  involved,  whether  prob- 
able cause  will  justify  the  seizure  and  detention;  if  there  are  no 
facts  in  the  pleadings  which  show  a  ground  to  suspect  that  there 
was  no  bona  fide  sale  and  transfer  of  the  vessel,  the  court  does  not 
wish  to  hear  any  argument  on  the  part  of  the  defendant  in  error. 
It  considers  the  point  as  settled  by  the  opinion  given  in  the  case  of 
the  Charming  Betsy,  with  which  opinion  the  court  is  well  satisfied. 
The  law  did  not  intend  to  affect  the  sale  of  vessels  of  the  United 
States,  or  to  impose  any  disability  on  the  vessel,  after  a  bona  fide 
sale  and  transfer  to  a  foreigner. 

Judgment  affirmed. 


Judgments  of  the  Court  of  Claims  of  the  United  States 

WILLIAM  GRAY,  Administrator,  v.  THE  UNITED 

STATES^ 

[No.  7,  French  Spoliations.     Decided  May  17,  1886] 

On  the  Proofs 

The  treaties  of  1778-  bind  America  and  France  in  reciprocal  obligations  looking 
to  independent  sovereignty  for  the  one  and  certain  exclusive  privi- 
leges for  the  other.  Subsequent  to  the  peace  of  1782  the  French 
revolutionary  government  charges  violations  of  the  treaty  in  not 
according  to  France  her  exclusive  privileges,  and  on  the  publication 
of  the  Jay  treaty,  1795,  breaks  off  diplomatic  relations.  Between  1791 
and  the  treaty  of  1800  ^  France  is  guilty  of  depredations  on  American 
commerce  in  violation  both  of  treaties  and  the  law  of  nations.  A 
state  of  partial,  maritime  war  exists.  In  1800,  negotiations  being  re- 
newed, the  French  Government  demands  restoration  of  the  exclusive 
privileges  and  indemnity  for  their  v/ithdrawal.  The  American  offers 
8,000,000  francs  to  be  released,  but  insists  on  indemnity  for  its  citi- 
zens. Finally  the  treaty  of  1800  is  ratified  with  both  pretensions 
stricken  out,  France  renouncing  her  claim  for  the  treaty  privileges 
and  America  her  claim  for  the  wrongs  done  her  citizens.  In  1885 
an  act  is  passed  authorizing  American  citizens  having  "valid  claims 
to  indemnity  upon  the  French  Government  arising  out  of  illegal  cap- 
tures, detentions,  seizures,  condemnations,  and  confiscations,"  prion 
to  the  treaty  of  1800,  to  bring  suit,  and  directing  this  court  to  "de- 
termine the  validity  and  amount"  thereof. 
I.  The  power  of  this  court  to  grant  redress  in  the  French  spoliation  cases 
is  necessarily  limited  by  the  terms  of  the  Act  of  January  20,  1885  *  (23 
Stat.  L.  283),  conferring  jurisdiction. 
II.  The  act  casts  upon  the  courts  the  duty  of  determining  judicially  both 
that  the  French  seizures  were  "illegal"  and  the  American  claims  are 
"valid." 

III.  The  treaties  of  alliance  and  commerce  with  France  1778,  having  been 

concluded  upon  the  same  day  and  the  result  of  the  same  negotiation 
and  signed  by  the  same  plenipotentiaries,  are  in  diplomatic  effect  one 
instrument. 

IV.  The  treaty  of   commerce  assured   to   France   exclusive  privileges ;    the 

treaty  of  alliance  cast  upon  the  American  Government  the  obligation 


1  Court  of  Claims  Reports,  vol.  21,  page  340.       ^  Infra,  pp.  441,  466. 
8  Infra,  p.  487.  *  Supra,  p.  92. 


228  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  maintaining  French  possessions  in  America;  the  Jay  treaty  of  1795, 
granting    the    same    commercial    privileges    to    England,    necessarily 
conflicted  with  the  French  treaties. 
V.  A  judicial  tribunal  must  treat  the  facts  of  a  former  international  dis- 
pute only  as  they  affect  private  rights.    Its  decision  can  not  properly  be 
regarded  as  a  reflection  upon  the  treaty-making  power. 
VI.  A  seizure  upon  the  high  seas  of  an  American  vessel  bound  for  a  neutral 
port  on  the  alleged  ground  of  her  having  violated  French  regulations 
"concerning  the  navigation  of  neutrals,"  was  an  illegal  seizure,  and 
the  claims  resulting  therefrom  a  valid  claim,  for  which  the  American 
Government  was  morally  bound  to  demand  redress. 
VII.  Concerning   the   question    whether    war    existed    between   America   and 
France  prior  to  the  treaty  of  1800  and  the  nature  and  extent  thereof, 
the  judicial  department  must  follow  the  political. 

VIII.  The  acts  of  1798  and  1799,  the  declarations  and  actions  of  the  Execu- 
tive, and  the  conduct  and  assurances  of  the  two  Governments  conclu- 
sively show  that  while  there  was  a  limited  maritime  war  (in  its 
nature  a  prolonged  series  of  reprisals),  nevertheless  no  state  of 
public  general  war  existed,  such  as  would  abrogate  treaties,  sus- 
pend private  rights,  or  authorize  indiscriminate  seizures  and  con- 
demnations. 
IX.  The  claims  which  the  French  Government  renounced  by  the  treaty  of 
1800  were  national ;  those  which  our  Government  renounced  were  in- 
dividual; and  the  reciprocal  renunciation  constituted  the  bargain  ef- 
fected by  the  treaty  of  1800. 
X.  All  claims  urged  by  one  nation  upon  another  are  technically  national; 
but  there  is  a  distinction  between  claims  founded  upon  injury  to  the 
whole  people  and  those  founded  upon  injury  to  particular  citizens. 
XI.  The  bargain  whereby  this  Government  obtained  the  renunciation  of  the 
French  claims  against  itself,  and  the  relinquishment  of  its  obligations 
under  the  treaty  of  1778,  brings  these  cases  within  the  provision  of 
the  Constitution,  that  "private  property  shall  not  be  taken  for  public 
use  without  just  compensation." 

XII.  The  claims  renounced  by  the  treaty  of  1800  were  unliquidated  demands 
for  wrong  and  injury;  the  debts  provided  for  by  the  treaty  of  1803 
were  obligations  in  the  nature  of  contract,  or  for  captures  as  to  which 
restitution  had  been  ordered  by  the  council  of  prizes.  Therefore  the 
latter  treaty  does  not  extend  to  the  former  demands. 

XIII.  The  attempt  of  the  French  Government  to  regulate  by  its  own  decrees 

the  conduct  of  neutral  merchantmen  upon  the  high  seas  was  contrary 
to  the  law  of  nations  and  void ;  and  the  seizure  of  an  American 
vessel  on  the  alleged  ground  that  her  "role  d' equipage"  was  not  in 
the  form  prescribed  by  French  law  was  illegal. 

XIV.  A  citizen   must  exhaust  his  remedy  in  the  courts  of  a  foreign  power 

before  he  can  call  upon  his  own  Government  for  diplomatic  redress ; 


GRAY  V.  UNITED  STATES  229 

but  the  decision  of  the  foreign  tribunal  is  not  final,  being  the  very 
beginning  of  the  international  controversy;  and  the  doctrine  is  appli- 
cable only  where  the  courts   are  open  and  the  citizen   free  to   seek 
redress. 
XV.  The  treaty  of  1819  with  Spain  does  not  extend  to  the  French  spoliation 
cases. 
XVI.  The  treaty  of  1831  with  France  does  not  extend  to  the  claims  renounced 
and,  from  an  international  point  of  view,  extinguished  by  the  treaty 
of  1800. 
XVII.  Whether  the  Act  of  May  28,  1798  i  (Stat.  L.  561),  abrogated  the  treaty 
of   1778  is  an  immaterial  question  here,  inasmuch  as  the  claims  rest 
on  the  violation  of  neutral  rights  under  the  law  of  nations. 
XVIII.  The  French  Spoliation  Claims  Act,  1885  2  (23  Stat.  L.,  §  3,  p.  283),  while 
requiring  this  court  to  determine  the  "present  ownership"  of  a  claim, 
does  not  require  it  to  act  as  a  court  of  probate  and  settle  estates 
of    deceased    owners.     Hence   an    action    may   be   maintained   by  an 
administrator. 

The  Reporters'  statement  of  the  case: 

This  is  the  leading  French  spoliation  case,  but  at  the  time  when  it 
was  brought  before  the  court  a  number  of  cases  were  presented  by 
the  various  counsel,  whose  names  are  given  below,  and  the  general 
question  of  the  Government's  liability,  and  the  general  principles  more 
or  less  applicable  to  all  of  these  cases,  were  discussed  at  great  length. 

The  decision  was  understood  to  be  final  as  to  this  case,  but  no  order 
was  entered  at  the  time  of  its  rendition. 

Mr.  William  Gray  for  the  claimant,  William  Gray,  administrator. 

Mr.  William  E.  Earle  (with  whom  was  Mr.  Samuel  Shellabarger) 
for  the  claimant,  F.  K.  Carey. 

Mr.  Fisher  Ames  for  the  claimant,  Fisher  Ames,  administrator. 

Mr.  Leonard  Myers  for  various  claimants  residing  in  Philadelphia. 

Mr.  Lawrence  Lewis,  Jr.,  for  the  same  and  other  parties. 

Mr.  J.  Hubley  Ashton  for  the  city  of  Philadelphia. 

Mr.  Benjamin  Wilson  for  the  defendants. 

Davis,  J.,  delivered  the  opinion  of  the  court : 

This  claim,  one  of  the  class  popularly  called  "French  spoliations," 
springs  from  the  policy  of  the  French  revolutionary  government  be- 


1  Supra,  p.  56.  "  Supra,  p.  92. 


230  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

tween  the  execution  of  King  Louis  XVI  and  the  year  1801,  a  policy 
which  led  to  the  detention,  seizure,  condemnation,  and  confiscation 
of  our  merchant  vessels  peacefully  pursuing  legitimate  voyages  upon 
the  high  seas.  Over  ninety  years  have  these  claims  been  the  subject 
of  discussion  and  agitation,  first  between  the  two  nations,  and  then 
between  the  individuals  injured  and  the  Government  of  the  United 
States.  Prolonged  and  heated  negotiation  resulted  in  the  treaty  of 
1800,  by  which,  it  is  urged  on  behalf  of  the  claimants,  their  rights 
were  surrendered  to  France  for  a  consideration  valuable  to  this  Gov- 
ernment. The  claims  being  valid  obligations  admitted  by  the  French 
Government,  they  contend  that  the  United  States,  through  this  agree- 
ment, in  which  demands  of  the  one  nation  were  set  off  against  those 
of  the  other,  assumed  as  against  their  citizens  these  obligations  and 
should  pay  them.  This  position  is  denied  by  the  Government,  which 
in  addition  presents  other  defenses  based  upon  subsequent  transactions 
between  the  two  countries,  urging  that  thereby  were  destroyed  any 
beneficial  rights  possibly  vested  in  the  claimants,  if  their  contention 
as  to  the  treaty  of  1800  be  correct. 

The  act  sending  the  claims  to  this  court,  while  the  third  that  has 
passed  both  Houses  of  Congress,  is  the  first  that  has  received  the 
approval  of  a  President,  as  one  was  vetoed  by  President  Polk,  another 
by  President  Pierce,  while  this,  the  third,  was  signed  by  President 
Arthur. 

Whatever  the  rights  of  the  claimants,  they  are  without  remedy  other 
than  that  which  Congress  may  have  seen  fit  to  give  them ;  and  our 
power  to  grant  redress,  be  our  opinion  as  to  the  justice  of  their  claims 
what  it  may,  is  limited  by  the  terms  of  the  remedial  statute.  The 
force  and  effect  of  the  act,  by  virtue  of  which  the  claimants  appear 
at  this  bar  seeking  relief,  must  then  be  examined  at  the  threshold  of 
the  discussion.  The  act  authorizes  "citizens  of  the  United  States  or 
their  legal  representatives,"  having  "valid  claims  to  indemnity  upon 
the  French  Government  arising  out  of  illegal  captures,  detentions, 
seizures,  condemnations,  and  confiscations,"  prior  to  the  ratification 
of  the  convention  of  1800  with  France,  to  apply  here  within  a  time 
limited  (§1),  that  (§  3)  this  court  may  "examine  and  determine  the 
validity  and  amount"  of  their  claims,  the  present  ownership,  and,  if 
owned  by  an  assignee,  certain  details  in  regard  thereto.  The  act  ex- 
cludes from  its  benefits  claims  embraced  in  certain  conventions  with 
France  and  Spain,  concluded  in  1803,  1819,  and  1831,  and  with  pro- 


GRAY  V.  UNITED  STATES  231 

visions  as  to  rules  of  court,  defense  of  the  United  States,  evidence 
and  other  matters  not  important  for  our  immediate  purpose,  directs 
this  court,  as  to  the  claims  thus  placed  within  our  jurisdiction,  to 
report  to  Congress  the  first  Monday  of  each  December  the  facts  found 
by  us  and  our  conclusions,  which  are  to  be  taken,  both  as  to  law  and 
facts,  as  advisory  and  not  conclusive  upon  either  party,  the  claimants 
or  the  Government. 

So  peculiar  a  jurisdiction  was  probably  never  before  conferred  upon 
a  strictly  judicial  tribunal.  The  rights  of  the  claimants,  if  any  exist, 
arise  from  the  acts  of  the  political  branch  of  the  Government  done 
in  the  protection  and  aid  of  the  nation.  For  such  rights  there  can 
be  no  remedy  other  than  that  granted  by  the  legislature;  in  this  in- 
stance the  legislature  has  elected  to  transmit  to  the  judiciary,  under 
certain  restrictions,  the  examination  of  the  claimants'  demands,  with 
the  proviso  that  the  conclusion  reached  in  this  forum  shall  not  be 
finally  binding  upon  either  party,  but  that  the  defendants,  as  well  as 
the  claimants,  have  reserved  to  them  an  appeal,  not  in  the  regular  line 
of  judicial  procedure  to  the  Supreme  Court  of  the  United  States, 
but  back  again  to  that  body,  from  which  alone  any  remedy  can  come 
to  the  citizen  for  wrongs  done  him  by  his  Government. 

The  reason  for  this  peculiar  grant  of  remedy  is  found  in  the  nature 
of  the  claims,  which  spring  from  international  controversies  of  the 
gravest  character  intimately  entwined  with  the  history  of  our  struggle 
for  independence ;  also  in  the  age  of  the  claims ;  and,  lastly,  in  the 
absolutely  indeterminate  amount  of  financial  responsibility  which  will 
be  thrown  upon  the  Government  should  the  claims  be  found  to  exist 
as  valid  obligations  due  from  the  United  States  to  their  citizens.  Good 
or  bad,  not  one  of  these  claims  is  enforceable  but  by  the  consent  of 
the  Congress,  and  the  Congress  can  affix  to  that  consent  such  condi- 
tion as  in  their  wisdom  seems  just  and  for  the  best  interests  of  the 
Republic.  The  remedy  now  granted  is  an  examination  and  advisory 
report  by  the  judiciary,  to  be  followed  by  a  decision  by  the  legislative 
branch  of  the  Government. 

It  has  been  said  that  the  validity  of  the  claims  as  a  class  is  admitted 
by  the  act,  and  this  court  should  confine  the  examination  to  each  in- 
dividual claim  for  the  purpose  only  of  determining  whether  it  falls 
Avithin  the  class.  This  is  understood  to  be  in  efi^ect  the  argument  on 
behalf  of  some  of  the  claimants.  Our  labor  and  responsibility  would 
be  greatly  lightened  could  we  agree  with  this  proposition,  but  the  act 


232  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  Congress  seems  clearly  to  negative  the  contention,  and  to  throw 
upon  us  the  duty  of  investigating  the  validity  of  these  claims  against 
France  and  the  assumption  of  them  by  the  United  States.  It  requires 
us  to  examine,  not  claims  in  a  specified  category  or  known  by  a  generic 
name,  not  even  "claims"  simply,  but  "valid"  claims  against  France, 
and  valid  claims  arising  not  merely  from  captures,  detentions,  seizures, 
condemnations,  and  confiscations,  but  from  acts  of  this  nature  which 
were  "illegal."  The  validity  of  the  claims,  as  against  France,  is  the 
very  first  condition  imposed  by  the  legislature  upon  the  grant  of 
remedy.  The  claims  must  have  been  "valid"  obligations  existing  at  the 
time  and  which  this  Government  had  the  right  to  enforce  diplomatically 
before  they  come  within  the  purport  of  the  statute.  To  grant  as  cor- 
rect the  contention  that  we  are  to  examine  in  each  case  whether,  and 
only  whether,  the  seized  or  detained  vessel  had  violated  the  law  of 
nations  or  the  treaties — as,  for  illustration,  drawn  from  the  argument, 
whether  she  carried  contraband  of  war,  or  attempted  to  break  an  actual 
blockade,  or  failed  to  carry  proper  papers — if  we  are  to  examine  only 
into  this,  then  effect  is  perhaps  given  to  the  word  "illegal,"  found  in  the 
statute  defining  the  nature  of  the  acts  from  which  the  claims  arise, 
but  the  word  "valid,"  of  equal  if  not  superior  force,  is  entirely  ignored. 

Clearly  Congress  expects  from  us  an  opinion  as  to  the  validity  of 
claims  of  this  class  as  against  France,  and  the  third  section  of  the  act, 
which  requires  us  to  receive  "historic  and  documentary  evidence,"  "to 
decide  upon  the  validity  of  said  claims  according  to  the  rules  of  law, 
municipal  and  international,  and  the  treaties  of  the  United  States  ap- 
plicable to  the  same,"  and  to  report  "all  such  conclusions  of  fact  and 
law  as  in  [our]  judgment  may  affect  the  liability  of  the  United  States 
therefor,"  is  not  only  confirmatory  of  this  conclusion,  but  obliges  us 
to  go  further  and  to  examine  into  the  resultant  liability  claimed  to 
exist  in  the  Government  of  the  United  States  to  compensate  the  claim- 
ants for  the  injuries  alleged  to  have  been  sustained  at  the  hands  of 
the  French  Republic.  This  involves  an  examination  of  the  history  of 
the  relations  between  the  two  countries  from  1777,  when  negotiations 
for  the  treaties  of  alliance  and  commerce  began,  as  the  whole  conten- 
tion starts  with  the  treaties  of  1778  with  France,  which  came  to  us 
during  the  darkest  hours  of  the  struggle  for  independence,  and  when 
we  were  hoping  against  hope  for  the  aid  which  there  was  no  prospect 
of  receiving. 

Burgoyne  had  capitulated,  Howe  had  been  driven  from  New  Jersey, 


GRAY  V.  UNITED  STATES  233 

and,  after  the  drawn  battle  of  Germantown,  was  shut  up  in  Philadel- 
phia, where  the  ease  and  luxury  of  a  city  camp  were  but  occasionally 
mterrupted  by  an  excursion  against  the  enemy  on  land  or  an  encounter 
upon  the  river.  Curiously  enough,  at  the  end  of  a  successful  cam- 
paign, the  American  cause  was,  barring  the  indomitable  spirit  of  the 
patriots,  in  the  direst  straits. 

Gates,  excited  by  his  success  at  the  north  and  become  the  president 
of  the  executive  board  of  war,  had  broken  with  Washington  and  had 
used  his  influence  successfully  in  securing  the  appointment  as  inspector- 
general,  against  Washington's  earnest  protest,  of  a  man  who  had 
openly  defied  the  commander-in-chief.  Washington's  army  of  less 
than  nine  thousand  men,  lying  at  Valley  Forge,  was  violently  assailed 
by  the  State  of  Pennsylvania  for  not  prosecuting  an  active  winter 
campaign,  while  even  in  Congress,  to  which  the  remonstrance  of  the 
State's  council  and  assembly  had  been  addressed,  there  was  deep  dis- 
content as  to  the  policy  of  the  commander-in-chief  and  sharp  criticism 
upon  his  conduct.  In  Philadelphia  the  British,  lodged  in  comfortable 
houses,  were  surrounded  by  every  luxury  which  a  full  purse  and  com- 
munication with  the  outer  world  could  afford ;  while  in  the  Continental 
camp,  as  Washington  wrote  to  Congress,  the  army  was  so  reduced 
by  cold  and  starvation,  that  unless  some  capital  change  took  place  it 
must  "starve,  dissolve,  or  disperse."  In  Philadelphia  there  was  every 
comfort  and  almost  every  means  of  dissipation ;  at  Valley  Forge  nearly 
three  thousand  men  were  unfit  for  duty  because  they  were  barefooted 
"and  otherwise  naked"  (Sparks's  Washington,  vol.  5,  pp.  197-203), 
while  many  were  in  the  hospitals  and  farm-houses  wanting  clothes  and 
shoes  (ibid.).  So  desperate  was  the  situation  that  General  Huntington 
preferred  fighting  to  starving,  his  brigade  being  out  of  provisions, 
while  General  Vamum,  quoting  the  saying  of  Solomon  that  "hunger 
will  break  through  a  stone  wall,"  added,  "three  days  successively  we 
have  been  destitute  of  bread ;  two  days  we  have  been  entirely  without 
meat.  The  men  must  be  supplied  or  they  can  not  be  commanded." 
(Ibid.  193.) 

This  condition  of  his  severely-tried  army  Washington  represented 
to  Congress  eloquently  and  repeatedly.  Practically  that  body  did 
nothing  to  remedy  the  evil,  but  on  the  other  hand,  suggested  the  pro- 
priety of  attacking  Philadelphia,  while  an  expedition  of  1,000  men 
was,  against  Washington's  judgment,  detached  for  an  invasion  of 
Canada;  an  expedition  abundantly  supplied  with  commanders  in  the 


234  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

persons  of  three  major-generals,  but  unfortunately  lacking  in  such 
necessary  military  details  as  food,  clothing,  and  transportation.  (Ban- 
croft, vol.  9,  ch.  27.)  The  financial  condition  of  the  country  was  in 
harmony  with  the  physical  condition  of  the  army,  and  the  issue  of 
eight  and  one-half  millions  of  paper  money  caused  an  enormous  de- 
preciation in  the  value  of  the  currency,  increased  the  feeling  of  finan- 
cial insecurity  and  necessarily  impaired  the  credit  of  the  Government. 
The  army  was  small,  insufficiently  fed,  paid,  and  clad ;  before  them 
was  a  strong,  rich,  and  prosperous  enemy ;  the  Government  was  weak, 
the  currency  suspected,  while  disaffection,  discontent,  and  jealousy 
were  prevalent  among  the  highest  officers. 

Such  was  the  close  of  the  year  1777  at  home.  Hardy,  determined, 
patriotic,  self-sacrificing  as  the  sturdy  revolutionists  were,  probably 
some  way  would  have  been  found  out  of  these  apparently  overwhel- 
ming misfortunes ;  how,  no  one  at  that  time  could  possibly  foresee. 
Relief  was,  however,  after  weary  waiting,  to  come  from  a  quarter 
where  it  had  long  been  expected  with  hope  constantly  deferred. 

Franklin  had  early  established  indirect  and  secret  relations  with  the 
court  of  France  through  his  friend  Dumas,  a  Swiss  man  of  letters 
residing  chiefly  in  Holland,  who  was  a  devoted  adherent  of  the  Ameri- 
can cause,  and  who  early  advised  an  alliance  with  France  and  Spain, 
it  being  to  their  interest  that  the  United  States  should  be  independent 
of  England,  "whose  enormous  maritime  power  [filled]  them  with  ap- 
prehensions." In  1776  Silas  Deane  was  sent  out  as  a  political  agent, 
and  he  soon  opened  secret  and  informal  relations  with  the  French  de- 
partment of  foreign  affairs.  He  could  not  succeed  in  obtaining  from 
France  any  open  action,  but  his  purchase  of  munitions  of  war  and 
supplies,  and  his  many  other  acts  in  direct  violation  of  strict  neutrality 
were  permitted,  winked  at,  and  encouraged.  He  was  told  that  it  was 
for  the  interest  of  both  covmtries  "to  have  the  most  free  and  uninter- 
rupted intercourse,"  but  that,  the  understanding  with  Britain  being- 
good,  there  could  not  be  recognition  of  the  shipping  of  military  sup- 
plies and  stores. 

Practically  in  this  condition  did  matters  rem-ain  after  the  arrival  of 
the  commissioners  (Franklin  and  Lee),  although  they  also  constantly 
pressed  the  argument  contained  in  the  instructions  to  Deane,  namely: 
France  is  the  country  it  is  fittest  for  us  to  obtain  and  cultivate;  the 
commercial  advantages  Britain  has  enjoyed  with  the  colonies  have 
greatly  contributed  to  her  wealth  and  importance ;  a  great  part  of  that 


GRAY  V.  UNITED  STATES  235 

commerce  will  fall  to  France,  especially  (and  here  is  the  key  of  the 
negotiation)  if  she  favors  us  now,  for  our  trade  is  rapidly  increasing, 
our  population  is  rapidly  increasing,  we  are  waxing  strong  and  rich,, 
with  a  great  future  before  us ;  why  not  step  in  now,  even  at  the  cost  of 
war  with  England,  a  war  which  under  any  circumstances  you  momen- 
tarily expect. 

French  popular  sentiment  was  with  us,  but  to  the  popular  clamor,, 
delicately  excited  by  the  astute  diplomacy  of  Franklin  and  his  col- 
leagues, was  opposed  the  clear  and  calm  judgment  of  the  King's  ad- 
visers, men  who  conceived  it  their  duty  to  obtain  for  their  master  every 
advantage  possible  from  the  struggling  colonies  at  the  least  possible 
expense  and  risk.  Supplies  and  stores  were  furnished,  but  the  assist- 
ance was  not  acknowledged;  munitions  of  war  found  their  way  across 
the  Atlantic,  while  the  fact  was  denied  to  England,  and  although  some 
of  these  very  supplies  came  from  the  arsenals  of  the  Government,  that 
fact  even  was  denied  to  our  own  representatives  who  had  forwarded 
them,  and  who,  as  matter  of  course,  knew  as  much  of  the  transaction 
as  the  minister  who  permitted  and  disavowed  it.  Day  after  day  with- 
out tiring  did  Dumas,  Deane,  Franklin,  and  Lee  press  for  open  action 
on  the  part  of  France.  Steadily  did  they  receive  promises  and  secret 
aid,  but  always  were  they  postponed  as  to  the  great  step  which  should 
produce  France  openly  to  the  world  as  the  ally  of  the  colonies  and  the 
avowed  enemy  of  England.  Before  the  eyes  of  Count  Vergennes  was 
successfully  dangled  the  bait  of  a  practically  exclusive  share  in  Ameri- 
can commerce,  but  still  he  hoped  to  secure  this  advantage  without  an 
open  rupture  with  England. 

In  this  condition  did  matters  rest  until  the  news  arrived  of  Bur- 
goyne's  defeat.  This  news,  which  reached  France  early  in  December, 
1777,  "apparently  occasioned  as  much  general  joy  as  if  it  had  been 
a  victory  of  their  own  troops  over  their  own  enemies."  (The  com- 
missioners to  Committee  on  Foreign  Affairs,  Paris,  December  18, 
1777.)  The  negotiations  instantly  took  so  long  a  stride  forward  that 
before  the  18th  of  December  it  was  decided  to  conclude  a  treaty  of 
amity  and  commerce,  the  King  becoming  fixed  in  his  determination  to 
acknowledge  and  support  the  independence  of  the  colonies  by  every 
means  in  his  power.  Nothing  could  be  more  generous  and  liberal  than 
the  whole  tone  and  manner  of  the  French  negotiation  from  this  time. 
Once  decided  and  committed  as  to  the  policy  of  openly  supporting  the 
colonies,  there  were  no  half-spirited  measures,  no  halting  at  petty  de- 


236  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

tails,  no  discussion  of  unimportant  trifles,  but  a  generous  and  open 
support;  nevertheless,  it  was  not  until  Gates's  victory  at  Saratoga  had 
seemed  to  turn  the  tide  of  events,  and  while  still  in  ignorance  of  the 
want  and  suffering  at  Valley  Forge,  that  this  action,  so  vital  to  the 
future  of  the  American  Republic,  was  taken.  The  war  for  indepen- 
dence was  with  the  assistance  of  France  prosecuted  to  a  successful 
issue,  and  at  Yorktown  the  surrender  of  Cornwallis  was  made  to  the 
combined  armes  of  Washington  and  Rochambeau  under  the  guns  of 
the  fleet  of  De  Grasse. 

This  brief  view  of  the  situation,  rehearsing,  as  it  does,  details  of 
most  familiar  history,  is  only  of  importance  as  it  relates  to  what  may 
be  called  sentimental  points  made  in  the  argument.  The  treaties  of 
1778  were  made  in  obedience  to  a  popular  demand  in  France;  they 
were  made  for  a  consideration  then  deemed  valuable  by  France,  and 
at  a  moment  which  then  seemed  opportune  to  France ;  but  they  came 
to  us  when  the  tide  was  apparently  turning  against  us,  and  the  aid  they 
promised  was  generously  given  us. 

The  30th  day  of  November,  1782,  provisional  articles  of  peace,  ac- 
knowledging the  thirteen  former  colonies  "to  be  free  and  independent," 
were  signed  at  Paris  by  the  representatives  of  the  United  States  and 
Great  Britain;  the  20th  of  January,  1783,  a  cessation  of  hostilities 
was  declared,  and  the  3d  of  September,  1783,  the  definitive  treaty  of 
peace  was  concluded.  France  had  thus  given  the  major  portion  of  the 
consideration  offered  by  her  for  the  contract  of  1778,  and  the  United 
States  were  free,  sovereign,  and  independent,  as  she  had  stipulated 
they  should  be. 

The  treaties  of  1778  were  two  in  number;  that  of  "alliance,"  the 
one  of  most  immediate,  and,  in  fact,  at  the  time,  of  absolutely  vital 
importance  to  the  United  States ;  and  that  of  "amity  and  commerce." 
While  separate  instruments,  they  were  concluded  upon  the  same  day, 
were  the  result  of  the  same  negotiation,  signed  by  the  same  plenipoten- 
tiaries, and  are,  in  diplomatic  effect,  one  instrument.  The  treaty  of 
alliance,  after  referring  to  its  companion,  the  treaty  of  commerce, 
states  that  the  two  powers  "have  thought  it  necessary  to  take  into 
consideration  the  means  of  strengthening  the  engagements  therein 
made,"  and  of  "rendering  them  useful  to  the  safety  and  tranquillity 
of  the  two  parties ;  particularly  in  case  Great  Britain,  in  resentment 
of  that  connection,  .  .  .  should  break  the  peace  with  France, 
either  by  direct  hostilities  or  by  hindering  her  commerce  and  naviga- 


GRAY  V.  UNITED  STATES  237 

tion  in  a  manner  contrary  to  the  rights  of  nations  and  the  peace  sub- 
sisting between  the  two  crowns;"  and  the  two  powers  resolving  in 
such  case  to  join  against  the  common  enemy  determined  upon  the 
treaty,  which  provided  that  if  war  should  break  out  between  France 
and  Great  Britain  during  the  war  for  American  independence,  each 
party  should  aid  the  other  according  to  the  exigencies,  as  good  and 
faithful  allies;  that  the  essential  end  of  the  alliance,  called  a  "defen- 
sive" alliance,  was  the  "liberty,  sovereignty,  and  independence,  absolute 
and  unlimited,  of  the  United  States." 

Provision  was  also  made  for  a  possible  conquest  of  Canada,  Ber- 
muda, and  the  islands  in  the  Gulf  of  Mexico,  and  each  party  was  for- 
bidden to  conclude  a  truce  or  peace  with  Great  Britain  without  the 
consent  of  the  other.  It  was  further  agreed  that  neither  should  lay 
down  arms  until  the  independence  of  the  United  States  was  assured  by 
treaties  terminating  the  war.  No  claim  was  to  be  made  by  one  against 
the  other  for  compensation,  whatever  the  result,  and  then  came  the 
guaranty,  out  of  which  afterwards  arose  so  serious  complications, 
national  and  international,  which  not  only  drove  our  country,  weak  and 
exhausted  from  seven  years'  strife,  to  the  verge  of  war,  but  also  stirred 
up  at  home  a  bitter  political  contest,  carried  even  into  the  intimacy  of 
a  President's  Cabinet. 

These  stipulations  are  contained  in  the  eleventh  and  twelfth  articles, 
whereby  each  party  guaranteed  "forever  against  all  other  powers" — 
first,  the  United  States  to  France:  all  the  possessions  of  France  in 
America  as  well  as  those  it  might  acquire  by  any  future  treaty  of 
peace ;  second,  France  to  the  United  States :  "their  liberty,  sovereignty, 
and  independence,  absolute  and  unlimited,"  together  with  their  pos- 
sessions and  their  additions  or  conquests  made  from  Great  Britain 
during  the  war.  Such,  in  substance,  was  the  treaty  of  alliance;  it  has 
never  been  contended,  so  far  as  known  to  us,  that  France  did  not  ful- 
fill the  requirements  which  this  instrument  imposed  upon  her  during 
our  contest  with  Great  Britain. 

The  provisions  of  the  other  agreement,  the  treaty  of  commerce,  of 
importance  in  this  case  (alluding  to  them  briefly)  required  protection 
of  merchantmen ;  required  ships  of  war  or  privateers  of  the  one  party 
to  do  no  injury  to  the  other;  and  provided  especial,  purely  exceptional, 
and  exclusive  privileges  by  each  party  to  the  other  as  to  ships  of  war 
and  privateers  bringing  prizes  into  port. 

The  treaty  of  alliance  was  not  one-sided,  for  it  imposed  upon  the 


.238  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

United  States  a  possible  duty  and  burden  in  the  fulfillment  of  the 
guaranty  of  French  possessions  in  America  "forever"  against  all  other 
powers.  This  issue  was  presented  without  delay.  The  French  revolu- 
tion began;  in  1793  the  King  was  beheaded,  when  France  was  in- 
stantly brought  face  to  face  with  the  powers  of  Europe,  and  her  pos- 
sessions in  America  were  soon  wrested  from  her. 

England  was  in  the  vanguard  of  the  war,  and  concluded  twenty- 
three  treaties  with  her  allies,  in  which  they  agreed  to  starve  out  the 
common  enemy.  To  this  end  was  it  stipulated  that  all  the  ports  should 
l>e  shut  against  France;  that  no  provisions  should  be  permitted  to  be 
■exported  to  France,  and  that  these  measures  should  be  continued  and 
others  employed  for  the  purpose  of  injuring  French  commerce  and 
to  bring  that  nation  to  just  conditions  of  peace.  (Treaty  between 
Great  Britain  and  Prussia,  July  14,  1793.)  The  animus  of  the  alli- 
ance is  further  shown  in  the  instruction  of  the  Czar,  who  directed 
his  admiral,  in  fulfillment  of  stipulations  with  Great  Britain,  to  pre- 
vent the  French  from  receiving  supplies,  and  to  that  end  to  seize  all 
French  vessels  and  to  send  back  to  their  own  ports  all  neutral  vessels 
bound  to  France,  stating  that  while  these  measures  were  not  "strictly 
conformable  to  the  natural  laws  of  war"  they  were  justifiable  when 
employed  against  "those  arrant  villains,  who  have  overturned  all  duties 
observed  towards  God,  the  laws,  and  the  Government ;  who  have  even 
gone  so  far  as  to  take  the  life  of  their  own  sovereign." 

All  Europe,  except  Sweden  and  Norway,  was  now  arrayed  against 
the  new  Republic  in  a  bitterness  of  warfare  scarcely  with  parallel,  and 
which  openly  descended  to  an  attempt  to  starve  the  French  people  into 
submission  through  an  attack  upon  neutral  commerce,  a  course  ad- 
mittedly unjustified  by  the  laws  of  war.  Naturally  France  looked  to 
the  United  States  for  aid,  relying  upon  the  pledge  of  the  treaty  of 
1778  and  the  assistance  rendered  us  in  our  scarcely-concluded  struggle 
by  her  fleet,  armies,  and  treasury. 

The  commercial  relations  between  France  and  the  United  States 
were  already  most  unsatisfactory.  Exceptional  favors  granted  the 
United  States  in  1787  and  1788  (Foreign  Relations,  vol.  1,  pp.  113- 
116)  and  had  been  withdrawn  and  the  equality  upon  which  French  and 
British  vessels  were  put  in  our  ports  had  excited  jealousy.  "No  excep- 
tional advantages  had  come  to  France  from  the  war  of  the  revolution, 
and  American  commerce  had  reverted  to  its  old  British  channels." 
^{Treaties  and  Conventions,  etc.,  Bancroft  Davis,  985.) 


GRAY  V.  UNITED  STATES  239 

Jefferson,  who  had  been  transferred  from  the  legation  in  Paris  to 
the  office  of  Secretary  of  State,  endeavored  to  secure  the  conclu- 
sion of  a  new  commercial  treaty,  but  unsuccessfully,  and  in  April,  1792, 
we  find  him  instructing  Mr.  Morris  that  "it  will  be  impossible  to  defer 
longer  than  the  next  session  of  Congress  some  counter  regulations  for 
the  protection  of  our  navigation  and  commerce.  I  must  entreat  you, 
therefore,  to  avail  yourself  of  every  occasion  of  friendly  remonstrance 
on  this  subject.  If  they  wish  an  equal  and  cordial  treaty  with  us  we 
are  ready  to  enter  into  it."  (Jefferson's  Works,  vol.  3,  p.  356.)  In 
June  he  again  writes  that  "we  can  not  consent  to  the  late  innovations 
without  taking  measures  to  do  justice  to  our  own  navigation"  (ibid. 
449),  and  after  the  imprisonment  of  the  King  he  informed  Morris 
that  some  matters,  such  "as  reforming  the  unfriendly  restrictions  on 
our  commerce  and  navigation,"  might  be  transacted  even  by  the  revolu- 
tionary government,  as  a  government  de  facto.     (Ibid.  489,) 

The  new  French  minister,  M.  Genet,  started  for  the  United  States 
in  the  spring  of  1793  armed  with  three  hundred  blank  commissions 
"to  distribute  to  such  as  [would]  fit  out  cruisers  in  our  ports  to  prey 
on  the  British  commerce."  (Foreign  Relations,  vol.  1,  p.  354.) 
Finally,  the  condition  of  aft'airs  caused  by  the  war  led  to  the  Presi- 
dent's proclamation  of  neutrality,  from  which,  curiously,  and  by  way 
of  compromise,  the  word  "neutrality"  was  omitted.  (Jefferson's 
Works,  vol.  3,  p.  591.) 

Genet  arrived  in  the  United  States  the  8th  of  April,  and  on  the  22d 
of  that  month  the  proclamation  was  issued  declaring  that  "the  duty 
and  interest  of  the  United  States  require  that  they  should  with  sin- 
cerity and  good  faith  adopt  and  pursue  a  conduct  friendly  and  im- 
partial towards  the  belligerent  powers." 

Already  at  Charleston,  where  he  landed,  Genet  had  commissioned 
privateers  and  sent  them  to  sea,  asserting  this  action  to  be  authorized 
by  the  treaty  of  1778,  and  informing  the  Secretary  of  State  of  his 
wish  that  the  Federal  Government  "should  observe,  as  far  as  in  their 
power,  the  public  engagements  contracted  by  both  nations ;  and  that  by 
this  generous  and  prudent  conduct  they  will  give  at  least  to  the  world 
the  example  of  a  true  neutrality  which  does  not  consist  in  the  cowardly 
abandonment  of  their  friends  in  the  moment  when  danger  menaces 
them,  but  in  adhering  strictly,  if  they  can  do  no  better,  to  the  obliga- 
tions they  have  contracted  with  them."  (Foreign  Relations,  vol.  1, 
p.  151.) 


240  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

In  September  following  Genet  asked  for  fire-arms  and  cannon  to 
protect  the  French  possessions  guaranteed  by  the  United  States,  but  he 
was  answered  by  the  Secretary  of  War,  with  what  he  terms  "an 
ironical  carelessness,"  that  "the  principles  established  by  the  President 
in  his  proclamation  did  not  permit  him  to  lend  us  so  much  as  'a  pistol.'  " 
(Senate  Doc.  102,  19th  Cong.,  1st  sess.,  p.  219.) 

The  French  law  of  May  15,  1791,  which  "inhibited  Americans  from 
introducing,  selling,  and  arming  their  vessels"  in  France,  and  "from 
enjoying  all  the  advantages  allowed  to  those  built  in  the  ship-yards 
of  the  Republic,"  was  suspended  by  the  national  convention  the  19th 
day  of  February,  1793,  when  extensive  privileges  were  granted  our 
commerce  {ibid.  35),  but  in  less  than  three  months  (9th  May,  1793), 
seventeen  days  after  the  date  of  the  President's  proclamation,  but  be- 
fore news  of  its  contents  could  have  been  received,  the  National  Con- 
vention issued  a  decree  ordering  the  arrest  of  any  neutral  vessels  laden 
with  provisions  bound  to  an  enemy's  port.  That  this  was  an  open  and 
palpable  violation  of  neutral  rights  was  not  denied,  for  it  was  a  meas- 
ure understood  to  be  retaliatory  to  the  course  pursued  by  Great  Britain, 
and  compensation  was  promised  to  those  neutrals  who  should  suffer  by 
its  operation.     (Ibid.  42.) 

This  decree  of  May  9,  1793,  authorized  French  vessels  of  war  and 
privateers  to  arrest  neutral  vessels  laden  with  provisions,  the  property 
of  neutrals,  but  destined  to  an  enemy's  port,  or  laden  with  enemy's 
merchandise,  the  merchandise  to  be  prize,  and  the  neutral  provisions 
to  be  paid  for,  together  with  proper  freight  and  indemnity  for  delay. 
The  23d  of  the  same  month  American  vessels  were  exempted  from  the 
operation  of  this  decree  (Foreign  Relations,  vol.  1,  p.  244)  ;  five  days 
later  this  second  decree  was  suspended ;  July  1  it  was  again  put  in 
force;  and  July  27  it  was  repealed,  leaving  the  decree  of  May  9 
finally  in  force  as  against  American  commerce.  (Ibid.,  vol.  3,  p.  284.) 
Our  minister  remonstrated,  and  the  national  assembly  vacillated  ;  never- 
theless the  decree  was  executed  in  plain  and  admitted  violation  of  neu- 
tral rights. 

The  decree  of  May  9,  1793,  and  that  of  November  18,  1794,  directed 
the  seizure  of  neutral  vessels  containing  enemy's  goods,  although  the 
treaty  of  1778  expressly  provided  that  "free  ships  make  free  goods" 
(Art.  23,  Treaty  of  Commerce)  ;  and  further,  under  an  ordinance  of 
1744,  revived  for  the  purpose,  a  foreign  vessel  having  on  board  a  super- 
cargo or  officer  from  an  enemy's  country,  or  whose  crew  was  by  more 


GRAY  V.  UNITED  STATES  241 

than  one-third  subjects  of  an  enemy,  was  adjudged  prize.  Mere  clear- 
ance for  some  of  the  West  India  Islands,  by  decree  of  February  1, 
1797,  subjected  neutral  vessels  to  capture  and  confiscation;  the  decree 
of  January  18,  1798,  issued  by  the  council  of  five  hundred,  condemned 
neutral  vessels  carrying  any  British  merchandise,  and  March  2,  1797, 
came  into  force  the  requirement  of  the  crew  list  or  "role  d'equipage," 
which  will  be  more  fully  considered  hereafter.     (Doc.  102,  p.  160.) 

President  Washington,  in  1793  (message  December  5),  spoke  of  the 
vexations  and  spoliations  understood  to  have  been  committed  on  our 
vessels  and  commerce  by  the  cruisers  and  officers  of  some  of  the 
belligerent  powers  as  requiring  attention,  and  suggested  that,  on  receipt 
of  proofs,  "due  measures  would  be  taken  to  obtain  redress  of  the  past 
and  more  effectual  provisions  against  the  future;"  whereupon  proof 
began  immediately  to  be  furnished. 

Before  this,  the  Secretary  of  State,  then  Mr.  Jefiferson,  had  adver- 
tised to  the  world  assurances  of  governmental  protection  and  aid. 

I  have  it  in  charge  from  the  President  [he  said  in  his  circular 
of  August  27,  1793,]  to  assure  the  merchants  of  the  United 
States  concerned  in  foreign  commerce  or  navigation  that  our 
attention  will  be  paid  to  any  injuries  they  may  suff^er  on  the  high 
seas  or  in  foreign  countries,  contrary  to  the  laws  of  nations  and 
existing  treaties,  and  that  on  their  forwarding  hither  well  authen- 
ticated evidence  of  the  same,  proper  proceedings  will  be  adopted 
for  their  relief. 

Mr,  Morris  had  already  brought  to  the  attention  of  the  French 
minister  of  foreign  aflfairs  "the  obnoxious  acts  of  the  late  assembly," 
but  without  securing  redress,  as  the  "attention  of  the  Government  was 
too  strongly  directed  towards  itself"  to  think  of  exterior  interests, 
"and  the  assembly,  at  open  war  with  the  executive,  would  certainly 
reject  whatever  should  now  be  presented  to  them."  (Doc.  102,  p. 
31.) 

Meantime  our  relations  with  Great  Britain  had  become  extremely 
threatening,  various  questions  growing  out  of  the  revolution  still  re- 
mained unadjusted,  and  when  the  instructions  given  by  the  admiralty, 
June  8,  1793,  became  known  in  the  United  States  it  was  felt  that  de- 
cisive action  could  not  be  longer  delayed.  These  instructions  directed 
the  commanders  of  His  Majesty's  ships  of  war  and  privateers  to  seize 
all  vessels  loaded  with  corn,  flour,  or  meal  bound  to  any  port  in  France, 


242  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

or  to  any  port  occupied  by  French  armies,  and  to  send  the  vessels  thus 
seized  into  any  convenient  harbor  that  the  cargo  might  be  purchased  by 
the  British  Government  and  the  ships  released ;  also  to  seize  all  ships, 
whatever  their  cargo,  bound  to  a  blockaded  port;  also  to  warn  off 
under  penalty  of  seizure  any  vessel  destined  to  a  port  not  actually 
blockaded,  but  "declared"  to  be  blockaded.  (Foreign  Relations,  vol.  1, 
p.  240.) 

Great  Britain,  when  complaint  was  made  of  these  orders,  attempted 
to  justify  them  upon  the  insufficient  plea  that  provisions  were  contra- 
band of  war.  (Foreign  Relations,  vol.  1,  pp.  240,  448  et  seq.)  Cor- 
respondence leading  to  no  prospect  of  a  satisfactory  result,  the  Presi- 
dent nominated  Mr.  Jay  as  minister,  saying  to  the  Senate  (April  16, 
1794),  that  "as  peace  ought  to  be  pursued  with  unremitted  zeal  before 
the  last  resource,  which  has  so  often  been  the  scourge  of  nations,  and 
can  not  fail  to  check  the  advanced  prosperity  of  the  United  States, 
is  contemplated,"  he  had  concluded  to  take  this  action.  {Ihid.  447.) 
The  instructions  given  Mr.  Jay  are  not  of  importance  in  this  connec- 
tion, as  it  is  sufficient  to  note  the  result  of  his  negotiation  in  the  treaty 
which  bears  his  name,  and  to  compare  its  important  provisions  with 
our  agreement  made  in  1778  with  the  King  of  France. 

We  had  promised  France  that  their  ships  of  war  and  privateers 
might  freely  carry  whithersoever  they  pleased  the  ships  and  goods 
taken  from  their  enemies ;  that  these  prizes  should  not  be  arrested  or 
seized,  or  examined,  or  searched  in  our  ports,  but  might  at  any  time 
freely  leave,  while  no  shelter  or  refuge  was  to  be  given  to  vessels 
having  made  prize  of  her  "subjects,  people,  or  property."  (Art.  17, 
Treaty  of  Commerce,  1778.)  The  United  States  had  thus  given 
France,  and  for  consideration,  not  only  a  valuable,  but  an  exclusive 
right;  yet  the  Jay  treaty,  in  the  twenty-fifth  article,  gave  these  same 
privileges  to  Great  Britain,  excluding  all  vessels  which  "should  have 
made  prize  upon  [her]  subjects." 

The  conflict  of  the  treaties  is  evident  and  of  course  was  fully  appre- 
ciated at  the  time. 

While  the  Jay  treaty  was  concluded  in  November,  1794,  its  ratifica- 
tions were  not  exchanged  until  October  the  following  year,  and  mean- 
time the  British  orders  in  council  directing  seizure  of  our  vessels  and 
provisions  bound  to  France  were  so  enforced  as  to  call  forth  from 
Mr.  Randolph,  then  Secretary  of  State,  the  warning,  as  late  as  July, 
1795,  that  the  Jay  treaty  had  not  yet  been  ratified  by  the  President; 


GRAY  V.  UNITED  Si  AXES  243 

"the  late  British  order  in  council  for  seizing  provisions  is  a  weighty 
obstacle  to  ratification.  I  do  not  suppose  that  such  an  attempt  to  starve 
France  will  be  countenanced."  (Foreign  Relations,  vol.  1,  p.  719.) 
Ever}'  endeavor  was  made  by  the  United  States  to  secure  a  repeal 
of  the  admiralty  order,  but  without  success,  and  finally  our  minister 
in  London,  Mr.  Adams,  was  instructed  that  if,  after  every  prudent 
eflfort,  he  found  it  could  not  be  removed,  its  continuance  was  not  to 
be  an  obstacle  to  the  exchange  of  ratifications.  The  order  was  not 
removed  or  modified ;  nevertheless  ratifications  of  the  treaty  were  ex- 
changed the  following  October. 

It  should  here  be  noted  that  soon  after  the  exchange  a  commission 
was  organized  which,  among  other  subjects,  was  to  ascertain  the 
amount  of  the  claims  of  American  citizens  on  Great  Britain  for  cap- 
tures made  in  violation  of  international  law.  After  various  interrup- 
tions the  labors  of  this  tribunal  closed  in  February,  1804,  when  awards 
considerably  exceeding  a  million  and  a  quarter  pounds  sterling  had 
been  made  in  favor  of  the  United  States  on  account  of  these  claims. 
(Treaties  and  Conventions,  etc.,  Bancroft  Davis,  1014—1016.)  This 
commission  existed  by  virtue  of  the  sixth  and  seventh  articles  of  the 
Jay  treaty,  the  latter  of  which  provided  that  whereas  complaints  had 
been  made  by  citizens  of  the  United  States  that  during  the  course  of 
the  war  "in  which  His  Majesty  is  now  engaged  they  have  sustained 
considerable  losses  and  damage  by  reason  of  irregular  or  illegal  cap- 
tures or  condemnations  of  their  vessels  and  other  property  under  color 
of  authority  or  commissions  from  His  Majesty,"  it  was  agreed  that 
where  adequate  compensation  could  not  then  be  actually  obtained  in 
the  ordinary  course  of  justice  full  compensation  would  be  made  by  the 
British  Government. 

Note  further  that  these  claims  were  for  spoliations  committed  by 
England  to  starve  the  French,  as  the  claims  now  before  us  are  for 
spoliations  committed  by  France  to  feed  her  people,  and,  again,  re- 
member, by  way  of  explanation,  that  the  remedy  alluded  to  in  the  Jay 
treaty  as  being  perhaps  obtainable  in  due  course  of  justice,  was  a  pos- 
sible recovery  by  the  captured  vessel  in  an  action  against  the  privateer 
upon  his  bond. 

Mr.  Morris,  proving  unacceptable  to  the  French  Government,  was 
recalled  at  their  request,  and  succeeded  by  Mr.  Monroe,  who  en- 
deavored to  secure  from  his  colleague.  Mr.  Jay,  information  as  to  the 
latter's  negotiation,  which  was  refused,  as  Monroe  declined  to  pledge 


244  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

himself  not  to  communicate  it  to  the  French  Government.  (Foreign 
Relations,  vol.  1,  pp.  517,  700.)  France  was  restive  under  the  situa- 
tion, and,  shortly  after  the  ratification  of  the  treaty,  asked  whether  the 
President  had  caused  orders  to  be  given  to  prevent  the  sale  of  prizes 
conducted  into  the  ports  of  the  United  States  by  vessels  of  the  Republic 
or  privateers  armed  under  its  authority.  As  to  this  question  the  Sec- 
retary of  State  informed  the  President : 

That  the  twenty-fifth  article  of  the  British  treaty  having  ex- 
plicitly forbidden  the  arming  of  [French]  privateers,  and  the  sell- 
ing of  their  prizes  in  the  ports  of  the  United  States,  the  Secretary 
of  the  Treasury  prepared,  as  a  matter  of  course,  circular  letters 
to  the  collectors  to  conform  to  the  restriction  contained  in  that 
[article  of  the  British  treaty]  as  the  law  of  the  land.  This  was 
the  more  necessary,  as  formerly  the  collectors  were  instructed  to 
admit  to  an  entry  and  sale  the  prizes  brought  into  our  ports  by  the 
French. 

The  Secretary  also  wrote  our  minister  in  London  that  orders  had 
been  given  to  prevent  the  sale  of  prizes  brought  into  United  States 
ports  by  French  privateers,  "conformably  with  the  twenty-fifth  article" 
of  the  Jay  treaty.  So  we  had  finally  and  openly  transferred  any  ex- 
clusive rights  of  France  imder  the  treaty  of  commerce  to  her  bitter 
enemy,  Great  Britain. 

But  we  had  another  obligation  towards  our  former  ally,  that  of 
guaranteeing  her  West  India  Islands. 

Long  prior  to  this  (December  11,  1787)  Jeflferson,  while  in  Paris, 
had  told  the  British  minister  there,  during  a  discussion  as  to  the  effect 
of  the  treaties  of  1778,  in  case  of  war  between  France  and  Great 
Britain,  and  told  him  "frankly  and  without  hesitation,"  that  the  dis- 
positions of  the  United  States  would  then  be  neutral,  and  that  this 
would  be  to  the  interest  of  both  powers,  because  it  would  relieve  both 
from  all  anxiety  as  to  feeding  their  West  India  Islands;  that  En- 
gland, too,  by  suffering  us  to  remain  so,  would  avoid  a  heavy  land  war 
on  our  continent,  which  might  very  much  cripple  her  proceedings 
elsewhere;  that  our  treaty  [with  France]  indeed  obliged  us  to  receive 
into  our  ports  the  armed  vessels  of  France,  with  their  prizes,  and  to 
refuse  admission  to  the  prizes  made  on  her  by  her  enemies ;  that  there 
was  a  clause,  also,  by  which  we  guaranteed  to  France  her  American 
possessions,  and  which  might  perhaps  force  us  into  the  war  if  these 


GRAY  V.  UNITED  STATES  245 

were  attacked.  "Then  it  will  be  war,"  said  the  minister,  "for  they 
will  assuredly  be  attacked." 

In  1790  another  American  minister  informed  the  English  secretary 
of  state  for  foreign  affairs  "that  in  a  war  between  Great  Britain  and 
the  House  of  Bourbon  (a  thing  which  must  happen  at  some  time)  we 
[the  United  States]  can  give  the  West  India  Islands  to  whom  we 
please,  without  engaging  in  the  war  ourselves,  and  our  conduct  must 
be  governed  by  our  interest"  (Wait's  American  State  Papers,  vol. 
10,  p.  97)  ;  and  this  in  face  of  a  treaty  concluded  but  twelve  years 
before  wherein  we  pledged  ourselves  to  a  guaranty  "forever"  of  the 
possessions  in  America  of  that  very  House  of  Bourbon.  Early  in 
1794  Mr.  Jefferson,  then  Secretary  of  State,  said,  as  to  this  subject, 
that  he  had  no  doubt  we  should  interpose  at  the  proper  time  "and 
declare  both  to  England  and  France  that  these  islands  are  to  rest 
with  France,  and  that  we  will  make  a  common  cause  with  the  latter 
for  that  object."  (Jefferson  to  Madison,  April  3,  1794,  Jefferson's 
Works,  vol.  4,  p.  103.) 

The  understanding,  therefore,  seems  to  have  been  clear,  yet  the  West 
India  Islands  went  to  England. 

The  French  spoliations  began  heedlessly  through  the  mistaken  action 
of  subordinates,  who  confounded  Americans  with  English,  because  of 
the  identity  of  race  and  language.  In  October,  1793,  Mr.  Deforgues 
wrote  to  Mr.  Morris : 

We  hope  that  the  Government  of  the  United  States  will  attrib- 
ute to  their  true  cause  the  abuses  of  which  you  complain,  as  well 
as  other  violations  of  which  our  cruisers  may  render  themselves 
guilty  in  the  course  of  the  present  war.  It  must  perceive  how  diffi- 
cult it  is  to  contain  within  just  limits  the  indignation  of  our 
marines,  and,  in  general,  of  all  the  French  patriots,  against  a 
people  speaking  the  same  language  and  having  the  same  habits  as 
the  free  Americans.  The  difficulty  of  distinguishing  our  allies 
from  our  enemies  has  often  been  the  cause  of  offenses  committed 
on  board  your  vessels.  All  that  the  administration  can  do  is  to 
order  indemnification  to  those  who  have  suffered  and  to  punish 
the  guilty.     (Doc.  102,  p.  70.) 

Not  long,  however,  could  this  plaintive  response  suffice  as  an  excuse 
for  the  outrages  committed  upon  our  citizens  and  their  property,  for, 
as  we  have  seen  by  the  decrees  already  cited  (and  there  were  many 
more),  the  assembly  soon  joined  in  the  attack,  authorized  it,  and  ren- 
dered it  governmental. 


246  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

A  single  mistaken  capture  might  be  forgiven,  provided  proper  com- 
pensation were  made  for  injury  to  the  citizen ;  but,  when  wholesale 
seizures  were  directed  by  the  legislature  and  thereupon  made  by  the 
executive,  the  matter  assumed  a  much  more  serious  and  difficult  aspect. 
To  use  the  words  of  Mr.  Sumner: 

As  intelligence  of  these  spoliations  reached  the  United  States 
our  whole  commerce  was  fluttered.  Merchants  hesitated  to  expose 
ships  and  cargoes  to  such  cruel  hazards,  and  thereupon  appeared 
the  circular  letter  of  the  Secretary  of  State  and  the  President's 
proclamation  encouraging,  by  the  promise  of  protection,  those  in- 
jured by  the  spoliators. 

So  ended  the  first  phase  of  this  controversy  with  a  nation  to  whom 
we  were  bound  by  the  strongest  treaty  ties,  a  nation  engaged  in  war 
against  an  apparently  overwhelming  force  and  whose  enemies  used 
means  of  attack  openly  admitted  to  be  contrary  to  the  laws  of  civilized 
warfare;  in  alleged  self-defense,  it  pursued  an  equally  if  not  more  in- 
defensible course,  which  resulted  in  severe  and  unjustifiable  loss  to 
our  citizens.  That  this  system  of  seizures  or  spoliations  was  forbid- 
den by  every  principle  of  civilized  warfare  was  frankly  admitted  at  the 
time,  and  later,  England,  which  had  pursued  a  similar  course,  made 
ample  amends,  and  Spain  which  had  countenanced  the  policy  of 
France,  and  lent  her  ports  in  aid  of  it,  did  the  same. 

Nor  were  we  altogether  clear  of  blame.  We  had  not  complied,  so 
far  as  appears,  with  the  stipulations  of  the  treaties  of  1778,  intended  to 
provide  for  possible  war;  we  had  not  protected  the  West  India  Islands, 
and  not  only  had  we  refrained  from  acting  as  the  ally  of  France,  but, 
by  the  Jay  treaty,  we  had  given  to  her  enemy  the  exclusive  port  privi- 
leges which  she  most  valued,  and  which  were  secured  to  her  by  the 
treaty  of  amity  and  commerce. 

It  is  not  for  us  to  criticise  the  patriotism  and  wisdom  of  the  Ameri- 
can statesmen  of  that  day,  the  leading  figures  of  our  history,  the  men 
who  bore  the  brunt  of  the  fight  which  brought  thirteen  struggling 
colonies  through  a  war  with  one  of  the  mightiest  and  bravest  nations 
of  Europe  to  the  successful  issue  which  made  possible  the  United 
States  of  today,  with  their  thirty-eight  States,  eight  Territories,  and 
population  of  not  far  from  sixty  millions.  Responsible  for  the  wel- 
fare and  future  of  a  little  republic  of  some  two  and  a  half  millions 
of  inhabitants,  exhausted  bv  seven  vears'  warfare,  and  environed  on 


GRAY  V.  UNITED  STATES  247 

this  continent  by  the  three  great  monarchies  of  Europe;  their  country 
poor  in  finance,  weak  in  population,  and  an  object  of  jealousy  and  dis- 
trust to  every  sovereign,  these  eminent  men  dealt  in  a  spirit  of  en- 
lightened patriotism  and  high  courage  v^ith  the  political  questions  pre- 
sented to  them,  according  to  their  best  and  well-trained  judgment,  in 
the  light  of  the  information  they  then  had.  We  now,  as  a  judicial 
body,  treat  the  facts  as  they  are  presented  in  relation  to  private  rights, 
and  no  judgment  of  ours  can  properly  be  held,  as  it  has  been  argued 
it  would  be,  to  reflect  in  any  manner  upon  the  course  pursued  by  the 
President,  his  advisers  and  subordinates,  in  the  anxious  period  between 
1789  and  1800.  Upon  their  diplomatic  foresight  and  ability  no  decision 
of  ours  can  cast  a  shadow,  and  it  must  be  clearly  understood  that  we 
deal  only  with  those  private  rights  which  may  possibly  have  been  in- 
vaded in  the  pursuit  of  a  policy  aiming  at  the  life  and  prosperity  of  the 
nation. 

The  French  complained  of  our  course  during  the  war  then  progres- 
sing, while  we  complained  of  spoliation  and  maltreatment  of  our  ves- 
sels at  sea,  losses  by  the  embargo  at  Bordeaux,  non-payment  of  drafts 
drawn  by  the  Colonial  administration,  seizures  of  cargoes  of  vessels, 
non-performance  of  contracts  by  Government  agents,  condemnation  of 
vessels  and  their  cargoes  in  violation  of  the  treaties  of  1778,  and  cap- 
tures under  the  decree  of  1793.  (Foreign  Relations,  vol.  1,  pp.  748 
et  seq.) 

Pinckney  was  ordered  out  to  replace  Monroe  under  particular  in- 
structions to  "look  into"  the  claims  of  our  citizens  {ibid.  742),  but  be- 
fore he  arrived  the  decree  of  October  31,  1796,  was  made  public,  which 
prohibited  the  importation  of  manufactured  articles,  whether  of  En- 
glish make  or  English  commerce  (6  Garden,  117),  and  Pinckney  upon 
his  arrival  was  not  recognized  or  received,  but  ordered  to  leave  France, 
as  that  Government  would  receive  no  minister  from  the  United  States 
"until  after  a  reparation  of  the  grievances  demanded  of  the  American 
Government,  and  which  the  French  Republic  had  a  right  to  expect." 
(Foreign  Relations,  vol.  1,  p.  746.) 

The  strained  relations  between  the  two  countries  can  not  be  better 
illustrated  than  by  an  extract  from  the  speech  of  the  president  of  the 
Directory  made  to  Monroe,  in  the  presence  of  the  diplomatic  corps, 
when  the  latter,  on  the  30th  December.  1796,  took  his  official  leave. 
Upon  that  occasion  the  president  said : 


248  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

By  presenting  this  day  to  the  Executive  Directory  your  letters 
of  recall  you  offer  a  very  strange  spectacle  to  Europe.  France, 
rich  in  her  freedom,  surrounded  by  the  train  of  her  victories,  and 
strong  in  the  esteem  of  her  allies,  will  not  stoop  to  calculate  the 
consequences  of  the  condescension  of  the  American  Government 
to  the  wishes  of  its  ancient  tyrants.  The  French  Republic  expects, 
however,  that  the  successors  of  Columbus,  Raleigh,  and  Penn,  al- 
ways proud  of  their  liberty,  will  never  forget  that  they  owe  it  to 
France.  They  will  weigh  in  their  wisdom  the  magnanimous 
friendship  of  the  French  people  with  the  crafty  caresses  of  per- 
fidious men  who  mediate  to  bring  them  again  under  their  former 
yoke.  Assure  the  good  people  of  America,  Mr.  Minister,  that, 
like  them,  we  adore  liberty ;  that  they  will  always  possess  our 
esteem,  and  find  in  the  French  people  that  republican  generosity 
which  knows  how  to  grant  peace  as  well  as  to  cause  its  sov- 
ereignty to  be  respected.     (Foreign  Relations,  vol.  1,  p.  747.) 

This  speech,  as  President  Adams  said,  discloses  sentiments 

more  alarming  than  the  refusal  of  a  minister,  because  more 
dangerous  to  our  independence  and  union,  and  at  the  same  time 
studiously  marked  with  indignities  towards  the  Government  of  the 
United  States.  It  evinces  a  disposition  to  separate  the  people 
of  the  United  States  from  the  Government.  .  .  .  Such  at- 
tempts ought  to  be  repelled  with  a  decision  which  shall  convince 
France,  and  the  world,  that  we  are  not  a  degraded  people,  humili- 
ated under  a  colonial  spirit  of  fear  and  sense  of  inferiority, 
fitted  to  be  the  miserable  instruments  of  foreign  influence,  and 
regardless  of  national  honor,  character,  and  interest.  (Foreign 
Relations,  vol.  1,  p.  40.) 

The  President  added  that,  having  no  diplomatic  representative  in 
France,  he  had  no  means  of  obtaining  official  information,  but  believing 
that  a  decree  had  been  passed  contravening  in  part  the  commercial 
treaty  of  1778,  he  laid  a  copy  of  that  instrument  before  the  Congress, 
stating  that  it  was  his  "indispensable  duty  to  recommend  to  [their] 
consideration  effectual  measures  of  defense."  The  Congress  were, 
however,  peacefully  inclined,  although  before  adjourning  they  passed 
the  law  providing  passports  for  American  vessels.     (1  Stat.  L.  489.) 

Soon  after  the  adjournment  (June  22)  Pinckney,  Marshall,  and 
Gerry  were  commissioned  envoys  to  France  for  the  purpose  of  endeav- 
oring to  renew  relations  with  that  country. 

Jefferson,  then  Vice-President,  immediately  wrote  Gerry: 


GRAY  V.  UNITED  STATES  249 

That  peace  is  undoubtedly  at  present  the  first  object  of  our  na- 
tion. Interest  and  honor  are  also  national  considerations.  But 
interest,  duly  weighed,  is  in  favor  of  peace,  even  at  the  expense 
of  spoliations,  past  and  future,  and  honor  can  not  now  be  an  ob- 
ject. The  insults  and  injuries  committed  on  us  by  both  the  bel- 
ligerent parties  from  the  beginning  of  1793  to  this  day,  and  still 
continuing,  can  not  be  wiped  off  by  engaging  in  war  with  one  of 
them.  Our  countrymen  have  divided  themselves  by  such  strong 
affections  to  the  French  and  the  English  that  nothing  will  secure 
us  internally  but  a  divorce  from  both  nations.  (Jefferson's  Works, 
vol.  4,  p.  187.) 

The  tone  and  intent  of  the  instructions  to  these  envoys  may  be  under- 
stood from  one  paragraph  in  Mr.  Pickering's  letter  to  them  (Doc.  102, 
p.  464,  July  15,  1797)  : 

Finally,  the  great  object  of  the  Government  being  to  do  justice 
to  France  and  her  citizens,  if  in  anything  we  have  injured  them, 
to  obtain  justice  for  the  multiplied  injuries  they  have  committed 
against  us,  and  to  preserve  peace,  your  style  and  manner  of  pro- 
ceeding will  be  such  as  shall  most  directly  tend  to  secure  these 
objects. 

The  envoys  had  hardly  reached  Paris  when  another  decree  was 
aimed  against  our  suffering  merchants  which  prohibited  every  vessel 
that  had  entered  an  English  port  from  being  admitted  into  any  port 
of  the  French  Republic,  and  handed  over  to  condemnation  every  vessel 
laden  in  whole  or  in  part  with  merchandise  coming  out  of  England 
or  her  possessions.  (Doc.  102,  p.  483.)  The  American  ministers  pro- 
tested, saying  that  the  decree  attacked  the  interests  and  independence 
of  neutral  powers ;  that  it  took  from  them  the  profits  of  an  honest  and 
lawful  industry,  as  well  as  the  inestimable  privilege  of  conducting  their 
own  affairs  as  their  judgment  might  direct,  and  added  that  acquiescence 
in  it  would  establish  a  precedent  for  national  degradation  which  would 
authorize  any  measures  power  might  be  disposed  to  practice.  (Ibid. 
483  et  seq.) 

France  leaned  to  dictation,  not  negotiation.  With  Bonaparte  suc- 
cessful in  Italy  and  Talleyrand  at  the  head  of  foreign  affairs,  she  was 
in  a  far  from  conciliatory  temper.  The  result  was  that,  without  ever 
being  received  officially,  the  envoys  returned,  not,  however,  before 
Talleyrand  had,  as  a  set-off  to  their  demands,  presented  the  counter- 
claims of  France.     (Foreign  Relations,  vol.  2,  p.  190.) 


250  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

During  this  mission  occurred  the  notorious  X.  Y.  Z.  episode,  when 
demands  were  made  upon  the  ministers  by  individuals,  veiled  in  the 
dispatches  under  these  mysterious  letters,  for  a  large  sum  of  money 
as  a  douceur  to  the  Directory  and  an  additional  and  much  larger 
amount  as  a  loan  to  France.  Talleyrand  later,  and  over  his  own  signa- 
ture, proposed  a  loan,  omitting  reference  to  the  douceur,  and  in  the 
same  note  complained  of  the  Jay  treaty  as  a  principal  grievance.  The 
dispatches  containing  an  account  of  the  X.  Y.  Z.  episode  coming  back 
from  the  United  States  in  print,  Gerry,  the  only  envoy  then  remain- 
ing, left  Paris  on  the  26th  July,  1798.  {Treaties  and  Conventions,  etc., 
Bancroft  Davis,  997,  998.) 

The  return  of  the  mission  created  an  effect  at  home  very  inimical 
to  France;  the  President  said  he  would  never  send  another  minister 
without  assurances  that  he  would  be  received,  respected,  and  honored 
as  "the  representative  of  a  great,  free,  powerful,  and  independent  na- 
tion" (Foreign  Relations,  vol.  2,  p.  199)  ;  but  before  this  (June  21, 
1798),  Congress  had  passed  the  act  "to  more  effectually  protect  the 
commerce  and  coasts  of  the  United  States"  (May  28,  1798,  1  Stat.  L. 
561),  the  act  suspending  commercial  relations  with  France  (June  13, 
1798),  and  various  other  laws  of  similar  import,  which  will  be  con- 
sidered hereafter  in  connection  with  another  branch  of  this  case. 

Washington  was  put  in  command  of  the  army  as  lieutenant-general 
and  commander-in-chief,  and  in  accepting  said  (5  Annals  of  Cong., 
622): 

The  conduct  of  the  Directory  of  France  towards  our  country; 
their  insidious  hostility  to  its  Government;  their  various  practices 
to  withdraw  the  affections  of  the  people  from  it;  the  evident  ten- 
dency of  their  acts  and  those  of  their  agents  to  countenance  and 
invigorate  opposition ;  their  disregard  of  solemn  treaties  and  the 
law  of  nations;  their  war  upon  our  defenseless  commerce;  their 
treatment  of  our  ministers  of  peace;  and  their  demands,  amount- 
ing to  tribute,  could  not  fail  to  excite  in  me  corresponding  senti- 
ments with  those  my  countrymen  have  so  generally  expressed. 

This  state  of  affairs  could  not  long  continue.  Talleyrand,  appre- 
ciating the  dangers  of  the  situation,  soon  opened  indirect  communica- 
tion with  the  United  States,  and  on  the  28th  September,  said  that  our 
plenipotentiary  if  sent  would  be  "received  with  the  respect  due  to  the 
representative  of  a  free,  independent,  and  powerful  nation."     (Foreign 


GRAY  V.  UNITED  STATES  251 

Relations,  vol.  2,  p.  242.)  This  was  an  exact  compliance  with  the 
President's  condition  precedent,  and  thereupon  Oliver  Ellsworth,  Chief 
Justice  of  the  United  States,  William  R.  Davie,  late  governor  of  North 
Carolina  (Patrick  Henry  declining  to  serve),  and  William  Vans 
Murray,  minister  resident  at  The  Hague,  were  commissioned  envoys 
extraordinary  and  ministers  plenipotentiary  "to  discuss  and  settle  by  a 
treaty  all  controversies  between  the  United  States  and  France." 
(Ibid.  243.)  This  mission,  appointed  in  March,  1799,  closed  its 
labors  by  the  treaty  signed  September  30,  1800. 

Arriving  in  France  they  found  the  Directory  no  longer  in  existence, 
but  treated  with  Napoleon,  then  become  First  Consul.  Ministers  were 
appointed  to  meet  them,  and  the  7th  April,  1800,  powers  were  ex- 
changed and  negotiations  began.     (Doc.  102,  p.  579.) 

The  Americans  were  instructed  to  inform  the  French  ministers  at 
the  opening  that  we  expected,  "as  an  indispensable  condition  of  the 
treaty,"  a  stipulation  to  make  to  our  citizens  "full  compensation  for  all 
losses  and  damage  which  they  shall  have  sustained  by  reason  of  irregu- 
lar or  illegal  captures  or  condemnations  of  their  vessels  and  other 
property,  under  color  of  authority  or  commissions  from  the  French 
Republic  or  its  agents."  Other  points  were  urged  upon  them,  but 
for  the  purpose  of  this  case  it  is  necessary  only  to  note  that  they  were 
to  obtain  a  claims  commission,  to  refuse  recognition  of  the  treaties 
of  1778,  to  refuse  a  guaranty,  to  refuse  any  aid  or  loan,  and  to  make 
no  engagement  contrary  to  the  Jay  treaty.  (Foreign  Relations,  vol. 
2,  p.  306.) 

The  Secretary  of  State  said,  in  his  instructions : 

Instead  of  relief,  instead  of  justice,  instead  of  indemnity  for 
past  wrongs,  our  very  moderate  demands  have  been  immediately 
followed  by  new  aggressions  and  more  extended  depredations, 
while  our  ministers,  seeking  redress  and  reconciliation,  have  been 
refused  a  reception,  treated  with  indignities,  and  finally  driven 
from  its  territories.  This  conduct  .  .  .  would  well  have 
justified  an  immediate  declaration  of  war,  but  .  .  .  the 
United  States  contented  themselves  with  preparations  for  de- 
fense, and  measures  calculated  to  protect  their  commerce. 

At  the  close  of  his  instructions  the  Secretary  sets  out  certain  points 
to  be  considered  as  ultimata,  of  which  the  following  only  is  now  im- 
portant ; 


252  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

1.  That  there  be  estabhshed  a  board  to  determine  the  claims  of 
our  citizens,  which  France  should  bind  herself  to  pay. 

Having  carried  the  history  of  the  claims  down  to  this  point  let  us 
look  back  upon  it  and  see  what  rights  we  had  at  that  time  as  against 
France,  laying  aside  for  the  moment  certain  defenses  set  up  by  the  de- 
fendants, such  as  the  existence  of  war  and  the  abrogation  of  the  old 
treaties.  Apart  from  these  points,  which  have  been  urged  upon  us 
with  great  ability  by  the  learned  counsel  for  the  Government,  were  the 
claims  at  the  opening  of  the  negotiations  in  1800  valid  international 
obligations  against  France? 

That  nation  had  seized  upon  the  high  seas  neutral  vessels  laden  with 
neutral  cargo.  In  the  case  at  bar,  for  example,  the  American  schooner 
Sally,  owned  by  citizens  of  the  United  States,  commanded  by  a  citizen 
of  the  United  States,  duly  registered  under  the  laws  of  the  United 
States,  bound  from  Massachusetts  to  Spain,  laden  with  cargo  belonging 
to  American  citizens,  was  seized  upon  the  high  seas,  taken  into  a 
French  port,  condemned  and  confiscated  for  the  benefit  of  the  priva- 
teer which  seized  her;  and  all  this,  not  upon  the  ground  that  she  had 
violated  the  law  of  nations,  but  because  she  had  violated  the  French 
regulations  "concerning  the  navigation  of  neutrals."  It  seems  hardly 
necessary  to  discuss  the  proposition  that  such  a  proceeding  was  unwar- 
ranted; the  French  themselves  admitted  it  in  their  decrees  and  corre- 
spondence; the  Russian  Czar,  in  ordering  his  admiral  to  pursue  a 
similar  course,  said  it  was  not  "strictly  conformable  to  the  natural  laws 
of  war."  England  paid  for  damages  thus  committed,  as  did  Spain, 
which  had  countenanced  the  acts  of  French  consuls  in  condemning 
American  vessels  brought  into  Spanish  ports.     (Treaty  of  1819.) 

Senator  Livingston,  in  the  Twenty-first  Congress,  first  session,  said, 
in  the  report  made  by  him: 

The  committee  does  not  recollect  that  the  justice  of  the  claims 
has  ever  been  denied.  ...  To  deny  [it]  would  be  assertion 
of  a  right  on  the  part  of  France  to  indiscriminate  plunder  of  neu- 
tral property.  .  .  .  But  the  justice  of  the  claims  was  not 
denied,  and  the  necessity  of  providing  indemnity  was  expressly 
acknowledged. 

This  is  true  as  a  matter  of  pure  international  law ;  how  much  more 
true  is  it  in  the  face  of  a  treaty  which  guaranteed  the  protection  to 


GRAY  V.  UNITED  STATES  253 

our  vessels  (Art.  6)  of  French  ships  of  war;  which  made  free  ships 
free  goods  (Art.  23)  ;  which  prohibited  opening  hatches  or  disturbing 
packages  when  the  vessel  had  a  passport  (Arts.  12  and  13)  ;  which  di- 
rected the  commanders  of  French  ships  to  do  no  "injury  or  damage" 
to  vessels  of  the  United  States  (Art.  15)  ;  and  which  contained  other 
provisions  insuring  an  exceptional  amount  of  protection  to  our  com- 
merce and  guardianship  of  our  commercial  rights? 

Mr.  Jefferson  thought  this  class  of  claims  valid  when  he  issued  his 
circular  of  August,  1793,  assuring  the  mercantile  community  that  due 
attention  would  be  paid  to  these  injuries  and  proper  proceedings 
adopted  for  their  relief.  The  President  thought  them  valid  when, 
later  in  the  same  year,  he  wrote  to  Congress  that  due  measures  would 
be  taken  to  "obtain  redress  of  the  past  and  more  effective  provisions 
against  the  future."  Pickering  thought  them  valid  when  he  made  their 
settlement  an  ultimatum,  and  the  French  Government  thought  them 
worthy  of  consideration  when  they  proposed  a  commission  to  decide 
upon  them  coupled  with  the  counter  proposition  that  the  United 
States  indemnify  American  creditors  then  existing,  or  to  be  created 
through  the  agency  of  this  commission,  by  way  of  a  loan  to  France, 
which  that  country  was  to  be  pledged  to  repay.     (Doc.  102,  p.  467.) 

The  defendants  contend  that  the  seizures  were  justified,  as  war  ex- 
isted between  this  country  and  France  during  the  period  in  question; 
and,  as  we  could  have  no  claim  against  France  for  seizure  of  private 
property  in  time  of  war,  the  claimants  could  have  no  resulting  claim 
against  their  own  Government ;  that  is,  the  claims,  being  invalid,  could 
not  form  a  subject  of  set-off  as  it  is  urged  these  claims  did  in  the 
second  article  of  the  treaty  of  1800.  It  therefore  becomes  of  great 
importance  to  determine  whether  there  was  a  state  of  war  between 
the  two  countries. 

It  is  urged  that  the  political  and  judicial  departments  of  each  Gov- 
ernment recognized  the  other  as  an  enemy ;  that  battles  were  fought 
and  blood  shed  on  the  high  seas ;  that  property  was  captured  by  each 
from  the  other  and  condemned  as  prize;  that  diplomatic  and  consular 
intercourse  was  suspended,  and  that  prisoners  had  been  taken  by  each 
Government  from  the  other  and  "held  for  exchange,  punishment,  or 
retaliation,  according  to  the  laws  and  usages  of  war."  While  these 
statements  may  be  in  substance  admitted  and  constitute  very  strong 
evidence  of  the  existence  of  war,  still  they  are  not  conclusive,  and  the 
facts,  even  if  they  existed  to  the  extent  claimed,  may  not  be  incon- 


254  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

sistent  with  a  state  of  reprisals  straining  the  relations  of  the  States  to 
their  utmost  tension,  daily  threatening  hostilities  of  a  more  serious 
nature,  but  still  short  of  that  war  which  abrogates  treaties,  and  after 
the  conclusion  of  which  the  parties  must,  as  between  themselves,  begin 
international  life  anew. 

The  French  issued  decree  after  decree  against  our  peaceful  com- 
merce, but  on  the  ground  of  military  necessity  incident  to  the  war  with 
Great  Britain  and  her  allies ;  they  refused  to  receive  our  minister,  but 
in  that  refusal,  insolent  though  it  was,  there  is  nothing  to  show  tha" 
war  was  intended,  and  the  mere  refusal  to  receive  a  minister  does  not 
in  itself  constitute  a  ground  for  hostilities. 

The  Attorney-General,  Mr.  Lee,  in  August,  1798,  very  strongly  sus- 
tained the  defendants'  position,  for  he  wrote  the  Secretary  of  State 
that  there  existed  with  France  "not  only  an  actual  maritime  war,"  but 
"a  maritime  war  authorized  by  both  nations ;"  that  consequently  France 
was  an  enemy,  to  aid  and  assist  whom  would  be  treason  on  the  part  of 
a  citizen  of  the  United  States ;  but  we  can  not  agree  that  this  extreme 
position  was  authorized  by  the  facts  or  the  law. 

Congress  enacted  the  various  statutes  hereinafter  referred  to  in  de- 
tail, and  when  one  of  them,  the  act  providing  an  additional  armament, 
was  passed  in  the  House,  Edward  Livingston,  who  opposed  it,  said: 

Let  no  man  flatter  himself  that  the  vote  which  has  been  given 
is  not  a  declaration  of  war.    Gentlemen  know  that  this  is  the  case. 

Those  were  times  of  great  excitement;  between  danger  of  interna- 
tional contest  and  the  heat  of  internal  partisan  conflict  statesmen  could 
not  look  at  the  situation  with  the  calmness  possessed  by  their  succes- 
sors, and  those  successors,  with  some  exceptions  to  be  sure,  regarded 
the  relations  between  the  countries  as  not  amounting  to  war. 

The  question  has  been  carefully  examined  by  authorized  and  compe- 
tent officers  of  the  political  department  of  the  Government,  and  we  may 
turn  to  their  statements  as  expository  of  the  views  of  that  branch  upon 
the  subject. 

In  1827  Senator  Holmes  reported  that  there  had  been  "a.  partial 
war,"  but  no  "such  actual  open  war  as  would  absolve  us  from  treaty 
stipulations.  ...  It  was  never  understood  here  that  this  was 
such  a  war  as  would  annul  a  treaty."  ('19th  Cong.,  2d  sess..  Senate 
Rep.,  Feb.  8,  1827,  p.  8.) 


GRAY  V.  UNITED  STATES  255 

Mr.  Giles,  reporting  to  the  House  of  Representatives  as  early  as 
1802,  called  it  a  "partial  state  of  hostility"  between  the  United  States 
and  France. 

Mr.  Chambers  reported  to  the  Senate  in  1828  that — 

The  relations  which  existed  between  the  two  nations  in  the  in- 
terval between  the  passage  of  the  several  acts  of  Congress  before 
referred  to  and  the  convention  of  1800  were  very  peculiar,  but 
in  the  opinion  of  your  committee  can  not  be  considered  as  placing 
the  two  nations  in  the  attitude  of  a  war  which  would  destroy  the 
obligations  of  previously  existing  treaties. 

Mr.  Livingston  reported  to  the  Senate  in  1830  that — 

This  was  not  a  case  of  war,  and  the  stipulations  which  recon- 
ciled the  two  nations  was  not  a  treaty  of  peace ;  it  was  a  convention 
for  the  putting  an  end  to  certain  differences.  .  .  .  Nowhere 
is  the  slightest  expression  on  either  side  that  a  state  of  war  ex- 
isted, which  would  exonerate  either  party  from  the  obligations 
of  making  those  indemnities  to  the  other.  .  .  .  The  conven- 
tion which  was  the  result  of  these  negotiations  is  not  only  in  its 
form  different  from  a  treaty  of  peace,  but  it  contains  stipulations 
which  would  be  disgraceful  to  our  country  on  the  supposition  that 
it  terminated  a  state  of  war.  .  .  .  Neither  party  considered 
then  they  were  in  a  state  of  war.     (Rep.  4,  p.  445.) 

Mr.  Everett  made  a  statement  in  the  House  of  Representatives  on 
the  21st  February,   1835,  in  which  he  said: 

The  extreme  violence  of  the  measures  of  the  French  Govern- 
ment and  the  accumulated  injuries  heaped  upon  our  citizens  would 
have  amply  justified  the  Government  of  the  United  States  in  a 
recourse  to  war;  but  peaceful  remedies  and  measures  of  defense 
were  preferred ;  [and,  after  referring  to  the  acts  of  Congress,  he 
adds:]  These  vigorous  acts  of  defense  and  preparation,  evincing 
that,  if  necessary,  the  United  States  were  determined  to  proceed 
still  further  and  go  to  war  for  the  protection  of  their  citizens,  had 
the  happy  effect  of  precluding  a  resort  to  that  extreme  measure  of 
redress. 

Finally,  Mr.  Sumner  considered  the  acts  of  Congress  as  "vigorous 
measures,"  putting  the  country  "in  an  attitude  of  defense;"  and  that 
the    "painful    condition    of    things,    though    naturally    causing    great 


256  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

anxiety,  did  not  constitute  war."  (38th  Cong.,  1st  sess..  Rep.  41,  1864.) 
The  judiciary  also  had  occasion  to  consider  the  situation,  and  the 
learned  counsel  for  defendants  cites  us  to  the  opinion  of  Mr.  Justice 
Moore  delivered  in  the  case  of  Bos  v.  Tingy  (4  Dall.  37),  wherein  the 
facts  were  as  follows :  Tingy,  commander  of  the  public  armed  ship  the 
Ganges,  had  libelled  the  American  ship  Eliza,  Bas,  master,  setting 
forth  that  she  had  been  taken  on  the  high  seas  by  a  French  privateer 
the  31st  March,  1799  and  retaken  by  him  late  in  the  following  April, 
wherefore  salvage  was  claimed  and  allowed  below.  Upon  appeal  the 
judgment  was  affirmed.  Each  of  the  four  justices  present  delivered 
an  opinion. 

Justice  Moore,  answering  the  contention  that  the  word  "enemy" 
could  not  be  applied  to  the  French,  says : 

How  can  the  characters  of  the  parties  engaged  in  hostility  or 
war  be  otherwise  described  than  by  the  denomination  of  enemies? 
It  is  for  the  honor  and  dignity  of  both  nations,  therefore,  they 
should  be  called  enemies ;  for  it  is  by  that  description  alone  that 
either  could  justify  or  excuse  the  scene  of  bloodshed,  depredation, 
and  confiscation  which  has  unhappily  occurred,  and  surely  Con- 
gress could  only  employ  the  language  of  the  act  of  June  13,  1798. 
towards  a  nation  whom  she  considered  as  an  enemy. 

Justice  Washington  considers  the  very  point  now  in  dispute,  saying 
(p.  40) : 

The  decision  of  this  question  must  depend  upon  .  .  . 
whether  at  the  time  of  passing  the  act  of  Congress  of  the  2d  of 
March,  1799,  there  subsisted  a  state  of  war  between  two  nations. 
It  may,  I  believe,  be  safely  laid  down  that  every  contention  by 
force  between  two  nations,  in  external  matters,  under  the  authority 
of  their  respective  Governments,  is  not  only  war,  but  pubHc  war. 
If  it  be  declared  in  form  it  is  called  solemn  and  is  of  the  perfect 
kind,  because  one  whole  nation  is  at  war  with  another  whole  na- 
tion, and  all  the  members  of  the  nation  declaring  war  are  author- 
ized to  commit  hostilities  against  all  the  members  of  the  other  in 
every  place  and  under  every  circumstance.  In  such  a  war  all  the 
members  act  under  a  general  authority,  and  all  the  rights  and  con- 
sequences of  war  attach  to  their  condition.  But  hostilities  may 
subsist  between  two  nations  more  confined  in  its  nature  and  ex- 
tent, being  limited  as  to  places,  persons,  and  things,  and  this  is 
more  properly  termed  imperfect  war,  because  not  solemn,  and 
because  those  who  are  authorized  to  commit  hostilities  act  under 


GRAY  V.  UNITED  STATES  257 

special  authority  and  can  go  no  further  than  to  the  extent  of  their 
commission.  Still,  however,  it  is  public  war,  because  it  is  an  ex- 
ternal contention  by  force  between  some  of  the  members  of  the 
two  nations,  authorized  by  the  legitimate  powers.  It  is  a  war  be- 
tween the  two  nations,  though  all  the  members  are  not  authorized 
to  commit  hostilities  such  as  in  a  solemn  war  where  the  Govern- 
ment retains  the  general  power. 

Applying  this  rule  he  held  that  "an  American  and  French  armed 
vessel,  combating  on  the  high  seas,  were  enemies,"  but  added  that 
France  was  not  styled  "an  enemy"  in  the  statutes,  because  "the  degree 
of  hostility  meant  to  be  carried  on  was  sufficiently  described  without 
declaring  war,  or  declaring  that  we  were  at  war.  Such  a  declaration 
by  Congress  might  have  constituted  a  perfect  state  of  war  which  was 
not  intended  by  the  Government." 

Justice  Chase,  who  had  tried  the  case  below,  said: 

It  is  a  limited,  partial  war.  Congress  has  not  declared  war  in 
general  terms,  but  Congress  has  authorized  hostilities  on  the  high 
seas  by  certain  persons  in  certain  cases.  There  is  no  authority 
given  to  commit  hostilities  on  land,  to  capture  unarmed  French 
vessels,  nor  even  to  capture  French  armed  vessels  in  a  French 
port,  and  the  authority  is  not  given  indiscriminately  to  every  citi- 
zen of  America  against  every  citizen  of  France,  but  only  to  citi- 
zens appointed  by  commissions  or  exposed  to  immediate  outrage 
and  violence.  ...  If  Congress  had  chosen  to  declare  a  gen- 
eral war,  France  would  have  been  a  general  enemy ;  having  chosen 
to  wage  a  partial  war,  France  was    .    .     .    only  a  partial  enemy. 

Justice  Paterson  concurred,  holding  that  the  United  States  and 
France  were  "in  a  qualified  state  of  hostility" — war  "quoad  hoc." 
As  far  as  Congress  tolerated  and  authorized  it,  so  far  might  we  pro- 
ceed in  hostile  operations  and  the  word  "enemy"  proceeds  the  full 
length  of  this  qualified  war,  and  no  further. 

The  Supreme  Court,  therefore,  held  the  state  of  affairs  now  under 
discussion  to  constitute  partial  warfare,  limited  by  the  acts  of  Con- 
gress. 

The  instructions  to  Ellsworth,  Davie,  and  Murray,  dated  October 
22,  1799,  did  not  recognize  a  state  of  war  as  existing,  or  as  having 
existed,  for  they  said  the  conduct  of  France  would  have  justified  an 
immediate  declaration  of  war,  but  the  United  States,  desirous  of  main- 
taining peace,  contented  themselves  "with  preparations  for  defense 
and  measures  calculated  to  defend  their  commerce."     (Doc.   102.  p. 


258  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

561.)  Yet  all  the  measures  relied  upon  as  evidence  of  existing  war 
had  taken  effect  prior  to  the  date  of  these  instructions.  So  the  min- 
isters, in  a  communication  to  the  French  authorities,  said,  as  to  the 
acts  of  Congress,  "which  the  hard  alternative  of  abandoning  their 
commerce  to  ruin  imposed,"  that  "far  from  contemplating  a  coopera- 
tion with  the  enemies  of  the  Republic  [they]  did  not  even  authorize 
reprisals  upon  her  merchantmen,  but  were  restricted  simply  to  the 
giving  of  safety  to  their  own,  till  a  moment  should  arrive  when  their 
sufferings  could  be  heard  and  redressed."     (Doc.  102,  p.  583.) 

France  did  not  consider  that  war  existed,  for  her  minister  said  that 
the  suspensions  of  his  functions  was  not  to  be  regarded  as  a  rupture 
between  the  countries,  "but  as  a  mark  of  just  discontent"  (15  Nov., 
1796,  Foreign  Relations,  vol.  1,  p.  583),  while  J.  Bonaparte  and  his 
colleagues  termed  it  a  "transient  misunderstanding"  (Doc.  102,  p.  590), 
a  state  of  "misunderstanding"  which  had  existed  "through  the  acts  of 
some  agents  rather  than  by  the  will  of  the  respective  'Goverrmients,'  " 
and  which  had  not  been  a  state  of  war,  at  least  on  the  side  of  France. 
(Ibid.  616.) 

The  opinion  of  Congress  at  the  time  is  best  gleaned  from  the  laws 
which  it  passed.  The  important  statute  in  this  connection  is  that  of 
May  28,  1798  (1  Stat.  L.  561)  entitled  "An  act  more  effectually  to 
protect  the  commerce  and  coasts  of  the  United  States."  Certainly 
there  was  nothing  aggressive  or  warlike  in  this  title. 

The  act  recites  that,  whereas  French  armed  vessels  have  committed 
depredations  on  American  commerce  in  violation  of  the  law  of  na- 
tions and  treaties  between  the  United  States  and  France,  the  President 
is  authorized — not  to  declare  war,  but  to  direct  naval  commanders  to 
bring  into  our  ports,  to  be  proceeded  against  according  to  the  law  of 
nations,  any  such  vessels  "which  shall  have  committed,  or  which  shall 
be  found  hovering  on  the  coasts  of  the  United  States  for  the  purpose 
of  committing,  depredations  on  the  vessels  belonging  to  the  citizens 
thereof;  and  also  to  retake  any  ship  or  vessel  of  any  citizen  or  citi- 
zens of  the  United  States  which  may  have  been  captured  by  any  such 
armed  vessel." 

This  law  contains  no  declaration  or  threat  of  war ;  it  is  distinctly  an 
act  to  protect  our  coasts  and  commerce.  It  says  that  our  vessels  may 
arrest  a  vessel  raiding  or  intending  to  raid  upon  that  commerce,  and 
that  such  vessel  shall  not  be  either  held  by  executive  authority  or  con- 
fiscated, but  turned  over  to  the  admiralty  courts — recognized  inter- 


GRAY  V.  UNITED  STATES  259 

national  tribunals — for  trial,  not  according  to  municipal  statutes,  as 
was  being  done  in  France,  but  according  to  the  law  of  nations.  Such  a 
statute  hardly  seems  necessary,  for  if  it  extended  at  all  the  police 
powers  of  naval  commanders  upon  the  high  seas  it  was  in  the  very 
slightest  degree,  and  it  is  highly  improbable  that  then  or  now,  with  or 
without  specific  statutory  or  other  authority,  an  American  naval  com- 
mander would  in  fact  allow  a  vessel  rightfully  flying  the  flag  of  the 
United  States  to  be  seized  on  the  high  seas  or  near  our  coasts  by  the 
cruiser  of  another  Government.  But  if  the  act  did  enlarge  the  power 
of  such  officers,  and  give  to  them  authority  not  theretofore  possessed, 
it  tied  them  down  to  specified  action  in  regard  to  specified  vessels. 

They  might  seize  armed  vessels  only,  and  only  those  armed  vessels 
which  had  already  committed  depredations,  or  those  which  were  on 
our  coast  for  the  purpose  of  committing  depredations,  and  they  might 
retake  an  American  vessel  captured  by  such  an  armed  vessel.  This 
statute  is  a  fair  illustration  of  the  class  of  laws  enacted  at  this  time; 
they  directed  suspension  of  commercial  relations  until  the  end  of  the 
next  session  of  Congress,  not  indefinitely  (June  13,  1798,  ibid.,  §  4,  p. 
566)  ;  they  gave  power  to  the  President  to  apprehend  the  subjects  of 
hostile  nations  whenever  he  should  make  "public  proclamation"  of  war 
(July  6,  1798,  ibid.  S77),  and  no  such  proclamation  was  made;  they 
gave  him  authority  to  instruct  our  armed  vessels  to  seize  French 
"armed,"  not  merchant,  vessels  (July  9,  1798,  ibid.  578),  together  with 
contingent  authority  to  augment  the  army  in  case  war  should  break  out 
or  in  case  of  imminent  danger  of  invasion.  (March  2,  1799,  ibid.  725.) 
Within  a  few  months  after  this  last  act  of  Congress  the  Ellsworth  mis- 
sion was  on  its  way  to  France  to  begin  the  negotiations  which  resulted 
in  the  treaty  of  1800  and  even  the  act  abrogating  the  treaties  of  1778 
does  not  speak  of  war  as  existing,  but  of  "the  system  of  predatory  vio- 
lence .  .  .  hostile  to  the  rights  of  a  free  and  independent  nation." 
(Ju]y  7,  1798 Jbid.  578.) 

If  war  existed  why  authorize  our  armed  vessels  to  seize  French 
armed  vessels?  War  itself  gave  that  right,  as  well  as  the  right  to  seize 
merchantmen,  which  the  statutes  did  not  permit.  If  war  existed  why 
empower  the  President  to  apprehend  foreign  enemies?  War  itself 
placed  that  duty  upon  him  as  a  necessary  and  inherent  incident  of 
military  command.  Why,  if  there  was  war,  should  a  suspension  of 
commercial  intercourse  be  authorized,  for  what  more  complete  sus- 
pension of  that  intercourse  could  there  be  than  the  very  fact  of  war? 


260  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

And  why,  if  war  did  exist,  should  the  President,  so  late  as  March,  1799, 
be  empowered  to  increase  the  army  upon  one  of  two  conditions,  viz., 
that  war  should  break  out  or  invasion  be  imminent,  that  is,  if  war 
should  break  out  in  the  future  or  invasion  become  imminent  in  the 
future  ? 

Upon  these  acts  of  Congress  alone  it  seems  difficult  to  found  a  state 
of  war  up  to  March,  1799,  while  in  February,  1800,  we  find  a  statute 
suspending  enlistments,  unless,  during  the  recess  of  Congress,  "war 
should  break  out  with  France."  This  is  proof  positive  that  Congress 
did  not  then  consider  war  as  existing,  and  in  fact  Ellsworth,  Davie,  and 
Murray  were  at  the  time  hard  at  work  in  Paris.  In  May  following 
the  President  was  instructed  to  suspend  action  under  the  act  providing 
for  military  organization,  although  the  treaty  was  not  concluded  until 
the  following  September. 

This  legislation  shows  that  war  was  imminent;  that  protection  of 
our  commerce  was  ordered,  but  distinctly  shows  that,  in  the  opinion  of 
the  legislature,  war  did  not  in  fact  exist. 

Wheaton  draws  a  distinction  between  two  classes  of  war,  saying: 

A  perfect  war  is  where  one  whole  nation  is  at  war  with  another 
nation,  and  all  the  members  of  both  nations  are  authorized  to  com- 
mit hostilities  against  all  the  members  of  the  other,  in  every  case, 
and  under  every  circumstance  permitted  by  the  general  laws  of 
war.  An  imperfect  war  is  limited  as  to  places,  persons,  and 
things  [to  which  the  editor  adds:]  Such  were  the  limited  hostili- 
ties authorized  by  the  United  States  against  France  in  1798. 
(Lawrence's  Wheaton,  518.) 

There  was  no  declaration  of  war ;  the  tribunals  of  each  country  were 
open  to  the  other — an  impossibility  were  war  in  progress;  diplomatic 
and  commercial  intercourse  were  admittedly  suspended ;  but  during 
many  years  there  was  no  intercourse  between  England  and  Mexico, 
which  were  not  at  war ;  there  was  retaliation  and  reprisal,  but  such  re- 
taliations and  reprisals  have  often  occurred  between  nations  at  peace; 
there  was  a  near  approach  to  war,  but  at  no  time  was  one  of  the  na- 
tions turned  into  an  enemy  of  the  other  in  such  manner  that  every 
citizen  of  the  one  became  the  enemy  of  every  citizen  of  the  other ; 
finally,  there  was  not  that  kind  of  war  which  abrogated  treaties  and 
wiped  out,  at  least  temporarily,  all  pending  rights  and  contracts,  indi- 
vidual and  national. 


GRAY  V.  UNITED  STATES  261 

In  cases  like  this  "the  judicial  is  bound  to  follow  the  action  of  the 
political  department  of  the  Government,  and  is  concluded  by  it" 
(Phillips  V.  Payne,  92  U.  S.  130)  ;  and  we  do  not  find  an  act  of 
Congress  or  of  the  Executive  between  the  years  1793  and  1801  which 
recognizes  an  existing  state  of  solemn  war,  although  we  find  statutory 
provisions  authorizing  a  certain  course  "in  the  event  of  a  declaration 
of  war,"  or  "whenever  there  shall  be  a  declared  war,"  or  during  the 
existing  "differences."  One  act  provides  for  an  increase  of  the  army 
"in  case  war  shall  break  out,"  while  another  restrains  this  increase 
"unless  war  shall  break  out."  (1  Stat.  L.  558,  577,  725,  750;  see  also 
acts  of  Feb.  10,  1800,  and  May  14,  1800.) 

We  have  already  referred  to  the  instructions  of  the  Executive,  which 
show  that  branch  of  the  Government  in  thorough  accord  with  the 
legislative  on  this  subject,  and  the  negotiations  of  our  representatives 
hereinafter  referred  to  were  marked  by  the  same  views,  while  the 
treaty  itself — a  treaty  of  amity  and  commerce  of  limited  duration — is 
strong  proof  that  what  were  called  "differences"  did  not  amount  to 
war.  We  are,  therefore,  of  opinion  that  no  such  war  existed  as  oper- 
ated to  abrogate  treaties,  to  suspend  private  rights,  or  to  authorize 
indiscriminate  seizures  and  condemnations ;  that,  in  short,  there  was 
no  public  general  war,  but  limited  war  in  its  nature  similar  to  a  pro- 
longed series  of  reprisals. 

The  general  effect  and  purpose  of  the  treaty  of  1800  can  be  clearly 
gleaned  from  the  negotiations  preceding  its  signature,  which  will  next 
be  considered. 

The  treaties  of  1778  provided  that  French  men-of-war  should  pro- 
tect our  vessels  and  citizens  (Treaty  of  Commerce,  Art.  6)  ;  that  our 
merchantmen  having  passports  and  certificates  showing  their  cargoes 
not  to  be  contraband  should  not  have  their  hatches  opened,  their  pack- 
ages disturbed,  or  the  "smallest  parcels  of  goods"  removed  (Arts.  12 
and  13)  ;  that  a  French  man-of-war  meeting  an  American  merchant- 
man should  remain  out  of  cannon-shot,  and  send  on  board  not  more 
than  three  men,  when,  should  the  merchantman  have  a  passport,  he 
might  proceed  (Art.  27)  ;  freedom  of  trade  was  secured  and  contra- 
band defined. 

Soon  after  the  French  revolution  the  series  of  attacks  upon  our 
commerce  began,  at  first  veiled  under  the  excuse  of  mistake,  then  of  a 
necessary   self-defense,   coupled   with   promise  of   compensation,   and 


262  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

finally  open  and  undisguised.  First  it  was  said  that  the  seizures  were 
accidental,  as  the  two  English-speaking  nations  could  not  be  distin- 
guished by  the  French  sailors ;  soon  after  all  neutral  vessels  laden  with 
provisions  and  bound  to  an  enemy's  port  were  ordered  seized  as  a  war 
measure,  but  compensation  was  promised ;  and  it  was  then  that  the 
President  and  Secretary  of  State,  having  already  issued  the  proclama- 
tion of  neutrality,  which  greatly  incensed  France,  voluntarily  promised 
protection  and  redress  to  citizens  of  the  United  States  thus  injured 
by  our  foi-mer  ally.  At  this  point,  therefore,  we  have  on  both  sides 
an  admission  of  the  validity  of  claims  arising  from  the  spoliations — 
the  President,  in  the  proclamation  and  circular  letter,  the  French,  in 
their  decrees,  as  well  as  in  a  letter  to  the  Secretary  of  State  (March 
27,  1794),  in  which  the  French  minister  wrote  that  "If  any  of  your 
merchants  have  suffered  any  injury  by  the  conduct  of  our  privateers 
.  .  .  they  may  with  confidence  address  themselves  to  the  French 
Government."  (Doc.  102,  p.  264.)  Nearly  four  months  later  the 
French  commissioner  of  foreign  relations  informed  our  minister  that 
there  should  not  be  a  doubt  of  the  disposition  of  the  convention  and 
Government  to  "make  good  the  losses  which  circumstances  inseparable 
from  a  great  revolution  may  have  caused  some  American  navigators 
to  experience."  (July  5,  1794 ;  ibid.  77.)  Then  came  Genet's  dismissal ; 
Jay  was  sent  to  England,  and  Monroe,  succeeding  Morris,  seemed  to 
have  progressed  so  successfully  that  Washington  announced  to  Con- 
gress (Feb.  20,  1795),  "that  these  claims  are  in  a  train  of  being  dis- 
cussed with  candor,  and  amicably  adjusted."  (Wait's  American  State 
Papers,  vol.  3,  p.  402.) 

The  Jay  treaty  entirely  changed  the  situation ;  France  violently 
remonstrated,  treated  Monroe  with  insult,  refused  to  receive  Pinckney, 
threw  off  the  last  restraints  upon  its  cruisers  and  privateers,  and  its 
colonial  agents  joined  with  so  much  vigor  in  the  illegal  attack  upon  a 
peaceful  neutral  commerce,  that  "American  vessels  no  longer  entered 
the  French  ports  unless  carried  in  by  force."    (Doc.  102,  pp.  434,  435.) 

Just  complaint  was  not,  however,  confined  to  one  side,  for  we  had 
failed  in  performance  of  obligations  imposed  upon  us  by  the  treaties 
of  1778.  We  had  undertaken  a  guaranty  of  French  possessions  in 
America,  and  pledged  ourselves  that  "in  case  of  a  rupture  between 
France  and  England  the  reciprocal  guaranty  .  .  .  shall  have  its 
full  force  and  effect  the  moment  such  war  shall  break  out."     (Art.  12, 


GRAY  V.  UNITED  STATES  263 

Treaty  of  Alliance.)  This  guaranty  was  to  endure  "forever."  It 
Avas  contended  by  us  that  the  casus  foederis  could  never  occur  except 
in  a  defensive  war.    As  Secretary  Pickering  said: 

The  nature  of  this  obligation  is  understood  to  be  that  when  a 
war  really  and  truly  defensive  exists  the  engaging  nation  is  bound 
to  furnish  an  effectual  and  adequate  defense,  in  cooperation  with 
the  power  attacked.  (Doc.  102,  p.  4.57,  Pickering  to  Pinckney 
et  al,  July  15,  1797.) 

Whether  the  treaty  so  limited  the  obligation,  or  whether  France 
in  her  struggle  with  the  allied  powers  was  waging  a  defensive  war, 
is  not  now  important.  France  certainly  believed  herself  entitled  to 
demand  our  aid,  and  understood  the  casus  foederis  to  have  occurred. 

At  the  opening  of  the  war  France  possessed  the  fertile  islands  of  St, 
Domingo,  Martinique,  Guadeloupe,  St.  Lucia,  St.  Vincent,  Tobago, 
Deseada,  Mariegalante,  St.  Pierre,  Miquelon,  and  Grenada,  with  a 
colony  on  the  mainland  at  Cayenne,  and  "in  little  more  than  a  month 
the  French  were  entirely  dispossessed  of  their  West  India  possessions, 
with  hardly  any  loss  to  the  victorious  nation."  (Alison's  History,  vol. 
3,  p.  396.) 

The  French  colonists  urged  us  to  intervene,  but  the  French  Govern- 
ment thought  it  wiser  for  us  not  then  to  embark  in  the  war,  as  it 
might  diminish  their  supplies  from  America ;  they  would,  however,  they 
said,  leave  us  to  act  according  to  our  wishes,  looking  to  us  meantime 
for  financial  aid.  (Foreign  Relations,  vol.  1,  p.  688.)  This  was  not 
a  renunciation  of  the  guaranty,  nor  was  it  so  regarded  here. 

A  study  of  the  correspondence  shows  that  these  provisions  of  the 
two  treaties,  especially  the  guaranty,  constantly  hampered  our  minis- 
ters, and  Jefferson  said  he  had  no  doubt  "we  should  interpose  at  the 
proper  time"  (Jefferson's  Works,  vol.  4,  p.  102),  while  the  French 
Government  dwelt  upon  the  "inexecution  of  the  treaties"  (Foreign  Re- 
lations, vol.  1,  p.  6.S8),  said  "they  had  much  cause  of  complaint  against 
us"  (ihid.  731),  and  finally  refused  to  receive  Pinckney  "until  after  a 
reparation  of  grievances,"  while  their  minister  here  demanded  "in  the 
name  of  American  honor,  in  the  name  of  the  faith  of  the  treaties,  the 
execution  of  that  contract  which  assured  to  the  United  States  their 
existence  and  which  France  regarded  as  the  pledge  of  the  most  sacred 
union  between  two  people  the  freest  upon  earth."  (Foreign  Affairs, 
vol.  1,  pp.  579  et  seq.) 


264  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  claims  of  France,  national  in  their  nature,  were  thus  set  up 
again  against  the  claims  of  the  United  States,  individual  in  their  in- 
ception, but  made  national  by  their  presentation  through  the  diplomatic 
department  of  the  Government. 

It  is  not  for  us  to  say  whether  the  claims  of  France  had  any  validity 
in  international  law,  because  for  the  purpose  of  this  case  it  need  only 
be  observed  that  they  were  urged  in  diplomacy  with  every  apparent 
belief  that  the  French  position  was  tenable.  Whether  valid  or  not  they 
were  an  efficient  arm  of  defense  against  our  contentions,  and  were 
so  used  with  ability,  skill,  and  success.  In  fact  there  is  a  recognition 
of  apparent  justness  in  these  demands  found  in  the  instructions  to  the 
Pinckney  mission,  who  were  directed  while  urging  our  claims  to  pro- 
pose a  substitute  for  the  mutual  guaranty  "or  some  modification  of  it," 
as  "instead  of  troops  or  ships  of  war"  "to  stipulate  for  a  moderate  sum 
of  money  or  quantity  of  provisions,"  to  be  delivered  in  any  future 
defensive  war  "not  exceeding  $200,000  a  year  during  any  such  war" 
(Foreign  Relations,  vol.  2,  p.  155),  and  Talleyrand,  on  the  other  side, 
told  Mr.  Gerry  (June  15)  that  the  Republic  desired  to  be  restored  to 
the  rights  which  the  treaties  conferred  upon  it,  and  through  these 
means  to  assure  the  rights  of  the  United  States.  "You  claim  indem- 
nities," he  said;  we  "equally  demand  them,  and  this  disposition  being 
as  sincere  on  the  part  of  the  United  States  as  it  is  on  its  [the  Republic], 
W'ill  speedily  remove  all  the  difficulties."     (Doc.  102,  p.  529.) 

Such  was  the  situation  when  the  Ellsworth  mission  arrived  in  France. 

The  instructions  to  this  legation  directed  them  as  an  "indispensable 
condition"  to  obtain  full  compensation  for  all  losses  and  damages  sus- 
tained by  citizens  of  the  United  States  from  irregular  or  illegal  cap- 
tures or  condemnations. 

The  French  representatives  did  not  dispute  the  validity  of  the  claims, 
but  stood  upon  the  treaties  of  1778.  To  their  opening  propositions 
the  American  envoys  received  a  courteous  response,  which,  however, 
put  a  new  phase  upon  the  negotiation,  and  placed  them  in  a  most  em- 
barrassing position.  Bonaparte  and  his  colleagues  said  in  substance 
(6  May,  1800,  Doc.  102,  p.  590)  :  The  discharge  of  damages  between 
the  two  nations  resulting  from  the  "transient  misunderstanding"  can 
be  "considered  only  as  a  consequence  of  the  interpretation"  given  by 
mutual  consent  to  the  treaties.  They  agreed  "upon  the  expediency 
of  compensation,"  and  suggested  that  the  discussion  had  become  con- 
fined to  two  points,  the  principles  which  ought  to  govern  the  political 


GRAY  V.  UNITED  STATES  265 

and  commercial  relations  of  the  two  countries  and  the  most  suitable 
form  for  liquidating  and  discharging  the  indemnities  due.  The  ex- 
amination of  principles  should  come  first  in  order,  they  said,  for  "in- 
demnification can  only  result  from  an  avowed  violation  of  an  acknowl- 
edged obligation,"  and  an  "agreement  upon  principles  can  alone  assure 
peace  and  maintain  friendship."  The  French  ministers  then,  alluding 
to  the  treaties,  referred  to  the  second  article  of  the  draft  submitted 
by  the  Americans,  which  provided  that  the  commission  suggested 
should  decide  claims  "conformably  to  justice  and  the  law  of  nations, 
And  in  all  cases  of  complaint  prior  to  the  7th  of  July,  1798,  they  should 
pronounce  agreeably  to  the  treaties  and  consular  convention  then  ex- 
isting between  France  and  the  United  States."  Now  this  second 
article  of  the  draft  applied  only  to  claims  of  citizens  of  each  country, 
while  July  7,  1798,  was  the  date  of  the  act  of  Congress  annulling  the 
treaties ;  but  the  French  ministers  ignoring  this  said  that  they  saw 
no  reasons  for  the  distinction,  as  the  treaties  and  convention  are  "the 
only  foundations  of  the  negotiations;"  that  from  them  arose  the  mis- 
understanding, and  upon  them  "union  and  friendship  should  be  es- 
tablished" ;  and  they  thus  significantly  concluded :  "When  the  under- 
signed hastened  to  acknowledge  the  principle  of  compensation,  it  was 
in  order  to  give  an  unequivocal  evidence  of  the  fidelity  of  the  French 
Government  to  its  ancient  engagements,  every  pecuniary  stipulation 
appearing  to  it  expedient  as  a  consequence  of  ancient  treaties,  and 
not  as  the  preliminary  of  a  new  one."  So  the  French  were  planted 
squarely  on  the  treaties  which  the  Americans  were  forbidden  to  con- 
sider as  existing  after  July,  1798.  Two  days  later  our  ministers  ex- 
plained their  position  (ibid.  592),  and  nine  days  later  wrote  to  the 
Secretary  of  State  (ibid.  607)  that  their  success  was  still  doubtful,  as 
the  "French  think  it  hard  to  indemnify  for  violating  engagements 
unless  they  can  thereby  be  restored  to  the  benefits  of  them."  Soon 
followed  a  conference  between  the  plenipotentiaries,  when  the  negotia- 
tions were  brought  to  a  halt,  as  no  further  progress  could  be  had  until 
other  "powers"  or  "instructions"  for  the  two  words  seem  to  have  been 
used  synonymously,  were  received  from  the  First  Consul. 

The  French  ministers  had  frequently  mentioned  the  insuperable 
repugnance  of  their  Government  to  surrender  the  claim  to  priority 
assured  to  it  in  the  "commercial  treaty  of  1778,"  urging: 

The  equivalent  alleged  to  be  accorded  by  France  for  this  stipu- 
lation, the  meritorious  ground  on  which  they  generally  represented 


266  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  treaty  stood,  denying  strenuously  the  power  of  the  American 
Government  to  annul  the  treaties  by  a  simple  legislative  act;  and 
always  concluding  that  it  was  perfectly  incompatible  with  the 
honor  and  dignity  of  France  to  assent  to  the  extinction  of  a  right 
in  favor  of  an  enemy,  and  as  much  so  to  appear  to  acquiesce  in 
the  establishment  of  that  right  in  favor  of  Great  Britain.  The 
priority  with  respect  to  the  right  of  asylum  for  privateers  and 
prizes  was  the  only  point  in  the  old  treaty  on  which  they  had 
anxiously  insisted,  and  which  they  agreed  could  not  be  as  well 
provided  for  by  a  new  stipulation.     (Doc.  102,  p.  608.) 

The  American  envoys  (July  23,  1800),  in  answer  to  the  French  ar- 
guments, reducing  to  writing  the  substance  of  two  conferences,  said 
(Doc.  102,  p.  612)  : 

As  to  the  proposition  of  placing  France  with  respect  to  an 
asylum  for  privateers  and  prizes,  upon  the  footing  of  equality 
with  Great  Britain,  it  was  remarked  that  the  right  which  had 
accrued  to  Great  Britain  in  that  respect  was  that  of  an  asylum 
for  her  own  privateers  and  prizes,  to  the  exclusion  of  her  enemies, 
wherefore  it  was  physically  impossible  that  her  enemies  should 
at  the  same  time  have  a  similar  right.  With  regard  to  the  ob- 
servation that  by  the  terms  of  the  British  treaty  the  rights  of 
France  were  reserved,  and  therefore  the  rights  of  Great  Britain 
existed  with  such  limitation  as  would  admit  of  both  nations  being 
placed  on  a  footing  which  should  be  equal,  it  was  observed  by 
the  envoys  of  the  United  States  that  the  saving  in  the  British 
treaty  was  only  of  the  rights  of  France  resulting  from  her  then 
existing  treaty,  and  that  that  treaty  having  ceased  to  exist,  the 
saving  necessarily  ceased  also,  and  the  rights  which  before  that 
event  were  only  contingent  immediately  attached  and  became 
operative. 

Admission  of  the  continuing  force  of  the  old  treaties  might  involve 
admission  of  France's  national  claims,  and  in  any  event  would  put 
her  ministers  into  a  most  advantageous  position,  giving  them  as  con- 
sideration, to  be  surrendered  at  their  pleasure  in  the  new  negotiation, 
what  would  then  be  a  vested,  existing,  and  acknowledged  right  to  the 
guarantee,  the  alliance,  and  the  use  of  our  ports.  Placed  in  this  posi- 
tion, France  would  be  without  incentive  to  action ;  she  would  start  in 
the  discussion  of  a  new^  treaty  with  more  surrendered  to  her  at  the 
outset  than  she  had  hoped  to  obtain  at  the  conclusion,  and  all  that 
she  afterward  gave  up  would  be  by  way  of  generous  concession.  What- 


GRAY  V.  UNITED  STATES  267 

ever  the  law,  whether  the  treaties  were  or  were  not  abrogated  by 
the  act  of  Congress  or  the  acts  of  parties,  the  American  env03's  were 
not  permitted  to  admit  the  French  contention,  but  were  in  duty  bound 
to  argue  that  the  treaties  were  without  continuing  force.  They  fol- 
lowed this  course,  saying: 

A  treaty  being  a  mutual  compact,  a  palpable  violation  of  it  by 
one  party  did,  by  the  law  of  nature  and  of  nations,  leave  it  op- 
tional with  the  other  to  renounce  and  declare  the  same  to  be  no 
longer  obligatory.  .  .  .  The  remaining  party  must  decide 
whether  there  had  been  such  violation  on  the  other  part  as  to 
justify  its  renunciation.  For  a  wrong  decision  it  would  doubtless 
be  responsible  to  the  injured  party,  and  might  give  cause  for 
war;  but  even  in  such  case,  its  act  of  public  renunciation  being 
an  act  within  its  competence  would  not  be  a  void  but  a  valid  act, 
and  other  nations  whose  rights  might  thereby  be  beneficially 
affected  would  so  regard  it.     (Doc.  102,  p.  612.) 

After  further  argument,  they  added  that  as  it  w^as  the  opinion  of 
the  French  ministers  that  "it  did  not  comport  with  the  honor  of 
France"  to  admit  the  American  contentions,  and  at  the  same  time 
be  called  upon  for  compensation,  they  offered  "as  their  last  effort"  a 
proposition  which  suspended  payment  of  compensation  for  spoliations 
"until  France  could  be  put  into  complete  possession  of  the  privileges 
she  contended  for,  and  at  the  same  time  they  offered  to  give  that  se- 
curity which  a  great  pecuniary  pledge  would  amount  to  for  her  hav- 
ing the  privilege  as  soon  as  it  could  be  given  with  good  faith,  which 
might  perhaps  be  in  a  little  more  than  two  years ;  at  any  rate  within 
seven."     (Ibid.  613.) 

The  French  answered  (Doc.  102,  p.  615)  that  they  still  foimd  no 
reason  to  consider  the  treaties  of  1778  as  broken;  the  act  of  1798, 
being  that  of  one  party,  could  not  destroy,  they  said,  "otherwise  than 
by  war  and  victory,"  that  which  was  the  engagement  of  two.  After 
some  further  argument  they  wrote  that  they  would  not  push  further 
their  observations,  as — 

Those  which  they  have  repeated  suffice  to  establish  the  rights 
of  France,  and  to  her  the  honor  of  a  sacrifice  which  she  would 
make  in  renouncing  the  exclusive  right  of  entry  into  the  ports  of 
America  for  French  privateers  accompanied  with  their  prizes. 
(Ibid.  615.) 


268  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

As  to  the  proposal  of  a  money  indemnity  for  delay  they  said: 

The  proposition  of  the  American  ministers  offers  to  the  Re- 
public at  a  distant  time  the  hope  of  exclusive  advantages,  and 
for  the  present,  and,  perhaps,  for  seven  years,  an  humiliating  for- 
feiture of  those  rights,  and  a  shameful  inferiority  with  regard  to  a 
state  [Great  Britain]  over  which  she  had  acquired  these  privi- 
leges by  the  services  she  had  rendered  to  America  when  it  made 
war  with  such  state.  When  the  ministers  of  France  can  subscribe 
to  a  condition  unworthy  the  French  nation,  the  price  which  they 
would  put  upon  their  humiliation  would  it  not  be  the  continu- 
ance of  a  subjection,  which  they  consider  to  be  contrary  to  the 
interest  of  the  United  States?  The  dependence  of  her  ally  can 
not  be  for  her  an  indemnity  for  a  national  suffering.  The  French 
ministers  believing  it  to  be  their  duty  to  insist  with  their  Gov- 
ernment upon  the  immediate  renunciation  of  a  privilege  well  ac- 
quired, it  would  be  contradictory  that  they  should  provide  for  its 
return  at  a  distant  time.     (Ibid.  615,  616.) 

Some  two  weeks  later  the  French  again  insisted  that  the  treaties 
v/ere  not  broken  by  the  state  of  "misunderstanding"  which  had  existed 
"through  the  acts  of  some  agents  rather  than  by  the  will  of  the  re- 
spective Governments,"  and  which  had  not  been  a  state  of  war,  at 
least  on  the  side  of  France.  (Ibid.  616.)  Yet,  after  this  opening,  the 
ministers  use  language  in  apparent  antagonism  with  the  position  thus 
and  before  advanced  that  the  treaties  were  still  existent;  their  tone 
toward  the  United  States  is  marked  by  extreme  bitterness,  but  they 
fmish  by  consenting  to  an  abolition  of  the  treaties  and  the  conclusion 
of  a  new  one.     The  alternative  proposition  is  thus  put: 

Either  the  ancient  treaties,  with  the  privileges  resulting  from 
priority  and  the  stipulation  of  reciprocal  indemnities,  or  a  new 
treaty,  assuring  equality  without  indemnity.     (Ibid.  618.) 

To  the  first  of  these  proposals  our  ministers  were  forbidden  to  as- 
sent, as  it  involved  an  admission  of  the  continuing  force  of  the  treaties ; 
to  the  second  they  could  not  assent,  for  their  first  duty  was  to  obtain 
indemnity.  The  time  had  come  when  they  must  go  beyond  their  in- 
structions and  assume  personal  responsibility.  (Doc.  102,  pp.  619, 
620.) 

In  August,  after  some  delay  and  apparent  friction,  the  Americans, 
saying  that  "while  nothing  would  be  more  grateful  to  America  than 


GRAY  V.  UNITED  STATE'^  269 

to  acquit  herself  of  any  just  claims  of  France,  nothing  could  be  more 
vain  than  an  attempt  to  discourse  to  her  reasons  for  the  rejection  of 
her  own,"  made  the  following  propositions  (ibid.  623-625)  : 

( 1 )  Let  it  be  declared  that  the  former  treaties  are  renewed  and 
confirmed  and  shall  have  the  same  effect  as  if  no  misunderstand- 
ing between  the  two  powers  had  intervened,  except  so  far  as  they 
are  derogated  from  by  the  present  treaty. 

(2)  It  shall  be  optional  with  either  party  to  pay  to  the  other 
within  seven  years  3,000,000  of  francs  in  money  or  securities  which 
may  be  issued  for  indemnities,  and  thereby  to  reduce  the  rights 
of  the  other  as  to  privateers  and  prizes  to  those  of  the  most 
favored  nation.  And  during  the  said  term  allowed  for  option  the 
right  of  both  parties  shall  be  limited  by  the  line  of  the  most 
favored  nation. 

The  third  proposition  looked  to  such  modification  of  the  mutual 
guaranty  that  military  stores  should  be  furnished  by  the  one  party 
to  the  value  of  1,000,000  francs  to  the  other  when  attacked,  but  either 
might  within  the  seven  years  pay  the  lump  sum  of  5,000,000  francs 
to  be  freed  from  the  obligation.  The  fifth  proposition  provided  in- 
demnities for  individuals,  and  that  "public  ships  taken  on  either  side 
[should]  be  restored  or  paid  for,"  and  the  sixth  that  all  property  seized 
by  either  party  and  not  yet  "definitively  condemned"  should  be  re- 
stored on  reasonable  proof  of  it  belonging  to  the  other.  So  they  finally 
agreed  to  recognize  the  existence  of  the  treaties,  the  right  of  France 
to  the  guaranty  and  exclusive  port  privileges,  and  proposed  to  pay 
a  lump  sum  to  be  free  of  their  obligation  in  the  future,  for  the  propo- 
sitions on  this  subject,  while  on  their  face  mutual,  were  in  effect  for 
the  benefit  of  the  United  States  alone,  France  much  preferring  to  revert 
to  the  statu  quo. 

Later  during  the  negotiations  an  offer  was  made  by  us  "to  extin- 
guish by  an  equivalent  of  8,000,000  francs  certain  claims  of  France 
under  the  former  treaties"  (ibid.  626,  629)  ;  but  even  after  all  these 
concessions  there  was  still  no  satisfactory  promise  of  a  result,  al- 
though the  existence  of  the  treaties  had  in  effect  been  recognized  and 
"indemnity  on  either  side  in  substance  agreed  to."  The  French  now 
made  a  counter  proposition  continuing  "the  ancient  treaties"  "as  if 
no  misunderstanding  had  occurred,"  providing  commissioners  "to 
liquidate  the  respective  losses,"  amending  the  article  as  to  the  use  of 
ports  by  privateers,  which  was  naturally  a  capital  subject  of  differ- 


270  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

ence,  and  providing  that  if  after  seven  years  the  seventeenth  and 
twenty-second  articles  of  the  treaty  of  commerce  were  not  reestab- 
lished no  indemnities  should  be  paid,  and,  further,  that  the  guaranty 
be  converted  into  a  "grant  of  succor  for  two  millions"  redeemable  by 
a  capital  sum  of  ten  millions.     (Ibid.  627,  628.) 

The  Americans  made  a  counter  proposal,  renewing  their  offer  of 
8,000,000  francs  to  be  paid  within  seven  years  in  consideration  that 
the  United  States  "be  forever  exonerated  of  the  obligation,  on  their 
part,  to  furnish  succor  or  aid  under  the  mutual  guaranty,"  and  that 
the  rights  of  the  French  Republic  be  forever  limited  to  those  of  the 
most  favored  nation.  (Ibid.  629.)  To  this  the  French  tersely  answered 
(ibid.  630): 

We  shall  have  the  right  to  take  our  prizes  into  your  ports ;  a 
commission  shall  regulate  the  indemnities  owed  by  either  nation 
to  the  citizens  of  the  other ;  the  indemnities  which  shall  be  due 
by  France  to  the  citizens  of  the  United  States  shall  be  paid  for 
by  the  United  States ;  in  return  for  which  France  yields  the  ex- 
clusive privileges  resulting  from  the  seventeenth  and  twenty- 
second  articles  of  the  treaty  of  commerce  and  "from  the  rights  of 
the  guaranty  of  the  eleventh  article  of  the  treaty  of  alliance." 

Matters  now  again  reached  a  halting  point;  neither  side  would 
yield;  France  acknowledged  her  real  object  to  be  to  avoid  payment 
of  indemnity,  while  the  United  States,  on  the  other  hand,  could  not 
assent  to  her  views  as  to  the  guaranty  and  use  of  ports.  In  con- 
siderable heat  the  ministers  parted.  (Ibid.  632,  633.)  The  next  day 
the  Americans  made  another  eftort,  because,  as  they  wrote  in  their 
journal  (ibid.  634),  "being  now  convinced  that  the  door  was  perfectly 
closed  against  all  hope  of  obtaining  indemnities  with  any  modifications 
of  the  treaty,  it  only  remained  to  be  determined  whether,  under  all 
circumstances,  it  would  not  be  expedient  to  attempt  a  temporary  ar- 
rangement which  would  extricate  the  United  States  from  the  war  or 
that  peculiar  state  of  hostility  in  which  they  are  at  present  involved, 
save  the  immense  property  of  our  citizens,  now  pending  before  the 
council  of  prizes,  and  secure,  as  far  as  possible,  our  commerce  against 
the  abuses  of  capture  during  the  present  war;"  therefore  they  proposed 
(ibid.  635)  that  as  to  the  treaties  and  indemnities,  the  question  should 
be  left  open ;  that  intercourse  should  be  free ;  then,  with  suggestions  as 
to   property  captured   and   not   definitively   condemned   and   property 


GRAY  V.  UNITED  STATES  271 

which  might  thereafter  be  captured,  they  asked  an  early  interview. 

The  French  still  insisted  that  a  stipulation  of  indemnities  involved 
an  admission  of  the  force  of  the  treaties  (ibid.  635-637),  and  after 
argument  proposed  that  the  discussion  of  the  indemnities,  together 
with  the  discussion  of  article  11  of  the  treaty  of  alliance  and  articles 
17  and  22  of  the  treaty  of  commerce,  be  postponed,  but  with  the  ad- 
mission that  the  two  treaties  are  ''acknowledged  and  confirmed  .  .  . 
as  well  as  the  consular  convention  of  1788;"  that  national  ships  and 
privateers  be  treated  as  those  of  the  most  favored  nation ;  that  na- 
tional ships  be  restored  and  paid  for,  and  that  the  "property  of  indi- 
viduals not  yet  tried  shall  be  so  according  to  the  treaty  of  amity  and 
commerce  of  1778,  in  consequence  of  which  a  role  d' equipage  shall 
not  be  exacted,  nor  any  other  proof  which  this  treaty  could  not 
exact."  So,  after  months  of  negotiation,  the  French  ministers  come 
back  flat-footed  upon  the  treaties  as  still  existing,  something  which 
our  representatives  were  forbidden  by  their  instructions  to  admit. 
Nevertheless  this  proposal  formed  the  text  for  discussion,  and  upon 
so  slight  a  foundation  was  built  the  treaty  of  1800. 

After  prolonged  negotiation,  and  after  striking  out  the  word  "pro- 
visional" in  the  name  or  description  of  the  new  treaty,  the  American 
commissioners  signed  it,  although  with  great  reluctance,  "because  they 
were  profoundly  convinced  that,  considering  the  relations  of  the  two 
countries  politically,  the  nature  of  our  demands,  the  state  of  France, 
and  the  state  of  things  in  Europe,  it  was  [their]  duty,  and  for  the 
honor  and  interest  of  the  Government  and  people  of  the  United  States, 
that  [they]  should  agree  to  the  treaty  rather  than  make  none."  (Ibid. 
640.) 

The  vital  effect  of  this  negotiation  as  explanatory  of  the  treaty  of 
1800,  upon  which  the  rights  of  these  claimants  are  founded,  explains 
the  rehearsal  of  its  details  during  which  the  so-called  ultimatum  of  our 
Government  was  abandoned  and  the  contention  of  the  French  Gov- 
ernment as  to  the  existence  of  the  treaties  was  admitted. 

Starting  under  their  instructions,  events  had  forced  the  ministers 
to  offer  unlimited  recognition  of  the  treaties  of  1778,  coupled  with  a 
pecuniary  equivalent  to  extingui-h  in  the  future  their  most  onerous 
provisions  (ibid.  643)  ;  even  this  was  not  accepted,  and  the  French,  re- 
turning to  their  original  ground,  said  that  no  indemnity  could  be 
granted  unless  the  treaties  were  recognized  without  qualification  as  to 
the  future,  and  this,  they  said,  with  the  avowed  object  of  avoiding 


272  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  payment  of  indemnity.  (Ibid.)  The  American  ministers  had  then 
but  two  courses  open  to  them,  either  to  quit  France,  leaving  the  United 
States  involved  in  a  dangerous  contest,  or  to  propose  a  temporary 
arrangement,  reserving  for  later  adjustment  points  which  could  not 
then  be  satisfactorily  settled.  (Ibid.  644.)  They  elected  the  latter 
course,  and  the  treaty  signed  at  Paris  the  30th  day  of  September,  1800, 
by  Ellsworth,  Davie,  and  Murray,  on  the  one  hand,  and  J.  Bonaparte, 
Fleurieu,  and  Roederer,  on  the  other,  became  part  of  the  supreme  law 
of  the  land,  and  was  so  proclaimed  by  the  President  the  21st  day  of 
December,  1801. 

But  between  its  signature  and  proclamation  a  very  important  his- 
tory intervened,  one  extremely  interesting  to  the  claimants  at  this 
bar,  and  which  has  been  the  cause  of  much  argument  and  contention. 

The  compromise  by  our  ministers,  to  which  they  were  forced  by  the 
position  of  the  French  Government,  was  contained  in  the  second  arti- 
cle, which  read: 

The  ministers  plenipotentiary  of  the  two  parties  not  being  able 
to  agree  at  present  respecting  the  treaty  of  alliance  of  6th  Feb- 
ruary, 1778,  the  treaty  of  amity  and  commerce  of  the  same  date, 
and  the  convention  of  the  14th  of  November,  1788,  nor  upon  the 
indemnities  mutually  due  or  claimed,  the  parties  will  negotiate 
further  on  these  subjects  at  a  convenient  time,  and  until  they 
may  have  agreed  upon  these  points  the  said  treaties  and  conven- 
tions shall  have  no  operation,  and  the  relations  of  the  two  coun- 
tries shall  be  regulated  as  follows. 

It  is  apparent  that  this  article  makes  the  treaty  temporary  and 
provisional  in  its  nature;  it  admits  that  the  existence  or  non-existence 
of  the  treaties  of  1778,  with  the  liabilities  thereby  imposed,  is  open  to 
discussion,  and  that  the  indemnities  are  not  provided  for;  that  is,  that 
the  very  first  of  the  so-called  "ultimata"  of  Secretary  Pickering  is 
temporarily  abandoned.  The  Senate  advised  and  consented  to  the 
ratification  of  the  treaty  provided  this  article  be  expunged,  and  in  its 
place  the  following  article  be  inserted : 

It  is  agreed  that  the  present  convention  shall  be  in  force  for 
the  term  of  eight  years  from  the  time  of  exchange  of  ratifications. 

Napoleon  thereupon  consented  (July  .31,  1801),  "to  accept,  ratify, 
and  confirm"  the  convention,  with  an  addition  importing  that  it  shall 


GRAY  V.  UNITED  STATES  273 

be  in  force  for  the  space  of  eight  years,  and  with  the  retrenchment 
of  the  second  article: 

Provided,  That  by  this  retrenchment  the  two  states  renounce 
the  respective  pretensions  which  are  the  object  of  the  said  article. 

The  ratifications  were  exchanged  in  Paris,  July  31,  1801.  The 
treaty,  with  its  addenda,  was  again  submitted  to  the  Senate,  and  in 
that  form  received  the  approval  of  that  body  (December  19,  1801), 
when  it  declared  that  it  considered  the  convention  "fully  ratified,'' 
and  returned  it  to  the  President  for  promulgation. 

What  the  respective  pretensions  were  which  were  the  subject  of 
the  second  article  does  not  admit  of  a  shadow  of  doubt:  on  the 
one  hand,  the  alleged  continuing  existence  of  the  treaties  incidentally 
involving  national  claims  for  past  acts  on  our  part  and  more  par- 
ticularly a  right  to  future  privileges;  on  the  other  hand,  indemnity 
to  our  citizens  for  spoliations. 

Our  claims  were  good  by  the  law  of  nations,  and  we  had  no  need 
to  turn  back  to  the  treaties  for  a  foundation  upon  which  to  rest  our 
arguments.  Not  so  with  France.  Her  national  claims  must  neces- 
sarily rest  on  treaty  provisions,  and  the  future  privileges  she  desired 
above  all  else  could  in  no  way  be  so  easily  or  fully  secured  as  by  an 
admission  of  the  continuing  force  of  those  instruments.  She  there- 
fore insisted  that  for  indemnity  we  must  give  treaty  recognition.  This 
we  absolutely  refused  to  do,  and  upon  this  rock  twice  did  the  negotia- 
tions split,  only  to  be  renewed  by  the  patience  and  patriotism  of  our 
ministers.  After  months  of  weary  discussion  the  parties  stood  as  to 
this  point  exactly  where  they  started,  and  to  save  their  young  and 
struggling  country  from  further  contest  the  American  ministers  con- 
sented to  the  compromise.  Then  the  Senate  struck  the  compromise 
out,  and  France  said  in  efifect,  "Yes,  we  agree,  if  it  is  understood 
that  we  mutually  renounce  the  pretensions  which  are  the  subject  of 
that  article,"  to  which  the  Senate  and  the  President,  by  their  official 
action,  assented. 

So  died  the  treaties  of  1778,  with  all  the  obligations  which  they 
imposed,  and  with  them  passed  from  the  field  of  international  conten- 
tion the  claims  of  American  citizens  for  French  spoliation. 

In  this  whole  transaction  the  treaties  were  urged  on  the  one  side 
against  indemnities  on  the  other.     Admission  of  the  continuing  force 


274  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  the  treaties  was  the  great  desire  of  France  to  which  she  subordinated 
all  else,  even  her  national  claims ;  on  the  other  hand,  the  United  States 
could  by  no  possibility  admit  such  a  contention,  for  to  do  so  would 
set  them  instantly  at  odds  with  their  former  enemy.  Having  given,  in 
1794,  to  Great  Britain  the  exclusive  port  privileges  secured  to  France 
in  1778,  they  could  not  in  1800  again  reverse  their  policy,  and,  by  re- 
turning these  privileges  to  France,  infringe  their  agreement  with 
Great  Britain. 

Yet  this  was  the  issue,  an  issue  never  retreated  from  by  the  French ; 
as  they  put  it,  "either  the  ancient  treaties  with  indemnity  [for  spolia- 
tions] or  a  new  treaty  without  indemnity."  Article  2  of  the  treaty 
of  1800  still  presents  these  counter  propositions  linked  together  when 
it  postpones  the  discussion  of  the  treaties,  and  at  the  same  time  post- 
pones the  discussion  of  the  indemnities. 

When  the  United  States  struck  out  that  second  article  and  assented 
to  Napoleon's  proviso  that  by  so  doing  both  states  renounced  the  pre- 
tensions which  were  its  object  (that  is,  the  treaties  and  these  claims), 
the  contract  was  complete.  That  there  was  a  "bargain,"  to  use 
Madison's  word,  is  apparent  from  the  instrument  and  the  negotiations 
which  have  been  recited  as  preceding  it. 

Four  years  later  Mr.  Madison,  then  Secretary  of  State,  instructed 
Mr.  Pinckney,  minister  in  Spain,  that  "the  claims  from  which  France 
was  released  were  admitted  by  France,  and  the  release  was  for  a 
valuable  consideration  in  a  correspondent  release  of  the  United  States 
from  certain  claims  on  them.  The  claims  we  make  on  Spain  were 
never  admitted  by  France  nor  made  on  France  by  the  United  States. 
They  made,  therefore,  no  part  of  the  bargain  with  her,  and  could  not 
be  included  in  the  release." 

The  counsel  for  defendants  contends  that  Mr.  Madison  referred 
in  this  letter  to  "national"  claims  on  the  part  of  the  United  States  for 
national  injury,  in  the  destruction  of  commerce,  the  increased  cost  of 
the  Army  and  Navy,  and  the  insult  to  the  flag.  It  should  be  noted, 
in  answer  to  this  position,  that  the  claims  against  Spain,  then  under 
discussion,  were  exactly  these  claims  now  at  bar,  except  that  Spain 
was  the  party  defendant  instead  of  France.  As  against  France  cap- 
tures made  by  French  privateers  under  French  decrees  were  taken 
into  French  ports,  and  there  condemned.  As  against  Spain  captures 
made  by  French  privateers  under  French  decrees  were  taken  into 
Spanish   ports   and   there   condemned   by   French   consuls   under  the 


GRAY  V.  UNITED  STATES  275 

authority  and  protection  of  Spain.  Spain  plead  that  these  claims  were 
settled  by  the  second  article  of  the  treaty  of  1800,  and  it  was  in 
answer  to  this  plea  that  Mr.  Madison  wrote  his  letter. 

The  subject-matter  of  the  instruction  to  Pinckney  was  these  claims 
and  nothing  else,  for  we  were  not  urging  "national"  claims  on  Spain, 
but  the  claims  subsequently  described  in  the  Spanish  treaty  as  those 
"on  account  of  prizes  made  by  French  privateers  and  condemned  by 
French  consuls  within  the  territory  and  jurisdiction  of  Spain." 
(Treaty  of  1819,  Art.  9.)  These  claims  were  finally  recognized,  and 
paid  through  the  Florida  purchase.  (Id.,  Art.  11;  see  also  treaty  of 
1802.) 

But  the  negotiations  of  the  Ellsworth  mission  are  conclusive  that 
the  claims  were  not  "national"  in  the  sense  of  governmental  as  op- 
posed to  individual.  It  is  unnecessary  to  repeat  extracts  from  the 
correspondence  already  given,  and  we  need  only  refer  to  the  project 
submitted  by  our  ministers,  the  18th  of  April,  1800,  which  describes 
the  claims  as  those  "of  divers  merchants  and  other  citizens  of  the 
United  States"  (Doc.  102,  pp.  .S85-589),  thus  following  their  instruc- 
tions, which  called  them  "claims  of  our  citizens."     (Ibid.  575.) 

Mr.  Pickering,  Secretary  of  State  under  the  first  two  Presidents, 
and  who,  above  all  others,  was  familiar  with  the  situation  and  with  the 
rights  of  the  parties,  said  that  we  bartered  "the  just  claims  of  our 
merchants"  to  obtain  a  relinquishment  of  the  French  demand,  and 
that— 

It  would  seem  that  the  merchants  have  an  equitable  claim  for 
indemnity  from  the  United  States.  .  .  .  The  relinquishment 
by  our  Government  having  been  made  in  consideration  that  the 
French  Government  relinquish  its  demands  for  a  renewal  of  the 
old  treaties,  then  it  seems  clear  that,  as  our  Government  applied 
the  merchants'  property  to  buy  off  those  old  treaties,  the  sums  so 
applied  should  be  reimbursed.     (Mr.  Clayton's  speech,  1846.) 

Mr.  Madison,  as  we  have  seen,  said  to  Spain  that  the  claims  were 
admitted  by  France,  and  were  released  "for  a  valuable  consideration," 
and  he  termed  the  transaction  a  "bargain." 

Mr.  Clay,  in  the  Meade  Case,  in  which  his  opinion  was  given  in 
1821.  five  years  prior  to  his  report  upon  French  spoliations,  said  that 
while  a  country  might  not  be  bound  to  go  to  war  in  support  of  the 
rights  of  its  citizens,  and  while  a  treaty  extinction  of  those  rights  is 
probably  binding,  it  appears — 


276  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

That  the  rule  of  equity  furnished  by  our  Constitution,  and 
which  provides  that  private  property  shall  not  be  taken  for  public 
use  without  just  compensation,  applies  and  entitles  the  injured 
citizen  to  consider  his  own  country  a  substitute  for  the  foreign 
power. 

In  this  conclusion  Chief  Justice  Marshall  strongly  concurred,  saying 
to  Mr.  Preston — 

Having  been  connected  with  the  events  of  the  period  and  con- 
versant with  the  circumstances  under  which  the  claims  arose,  he 
was,  from  his  own  knowledge,  satisfied  that  there  was  the 
strongest  obligation  on  the  Government  to  compensate  the  suf- 
ferers by  the  French  spoliations.     (Clayton's  speech,  1846.) 

And  he  repeated  to  Mr.  Leigh  distinctly  and  positively  "that  the 
United  States  ought  to  make  payment  of  these  claims." 

This  view  of  the  distinguished  jurist  and  diplomatist  is  sustained 
by  forty-five  reports  favorable  to  the  claims,  made  in  the  Congress, 
against  which  stand  but  three  adverse  reports,  all  of  which  were 
made  prior  to  the  publication  of  the  correspondence  by  Mr.  Qay  in 
1826.  Besides  Marshall,  Madison,  Pickering,  and  Clay,  the  validity 
of  the  claims  has  been  recognized  by  Clinton,  Edward  Livingston, 
Everett,  Webster,  Cushing,  Choate,  Sumner,  and  many  other  of  the 
most  distinguished  statesmen  known  to  American  history,  and  while 
opponents  have  not  been  wanting,  among  the  most  eminent  of  whom 
were  Forsyth,  Calhoun,  Polk,  Pierce,  Silas  Wright,  and  Benton,  still 
the  vast  weight  of  authority  in  the  political  division  of  the  Government 
has  been  strenuous  in  favor  of  the  contention  made  here  by  the 
claimants. 

The  judiciary  has  seldom  occasion  to  deal  with  the  abstract  right  of 
the  citizen  against  his  Government ;  for  in  a  case  raising  such  a  ques- 
tion the  individual  is  without  remedy  other  than  that  granted  him 
by  the  legislature.  The  question  of  right,  therefore,  is  usually  passed 
upon  by  the  political  branch  of  the  Government,  leaving  to  the  courts 
the  power  only  to  construe  the  amount  and  nature  of  the  remedy 
given.  Still  judicial  authority  is  not  wanting  in  support  of  the  posi- 
tion that  by  the  agreement  with  France  the  United  States  became 
liable  over  to  their  individual  citizens.  Lord  Truro  laid  down  in  the 
House  of  Lords  as  admitted  law — 


GRAY  V.  UNITED  STATES  277 

That  if  the  subject  of  a  country  is  spoliated  by  a  foreign  Gov- 
ernment he  is  entitled  to  redress  through  the  means  of  his  own 
Government.  But  if  from  weakness,  timidity,  or  any  other  cause 
on  the  part  of  his  own  Government  no  redress  is  obtained  from 
the  foreign  one,  then  he  has  a  claim  against  his  own  country. 
{De  Bode  v.  The  Queen,  3  Clarke's  House  of  Lords,  464.) 

The  same  position  is  sustained  by  that  eminent  writer  upon  the 
public  law,  Vattel,  who  held  that  while  the  sovereign  may  dispose  of 
either  the  person  or  the  property  of  a  subject  by  treaty  with  a  foreign 
power,  still,  "as  it  is  for  the  public  advantage  that  he  thus  disposes 
of  them,  the  state  is  bound  to  indemnify  the  citizens  who  are  suf- 
ferers by  the  transaction."     (Book  4,  ch,  2.) 

Napoleon,  from  his  retirement  in  St.  Helena,  testified  that  by  the 
suppression  of  the  second  article  of  the  treaty  of  1800  the  privileges 
which  France  had  possessed  by  the  treaty  of  1778  were  ended,  and 
the  "just  claims  which  America  might  have  made  for  injuries  done 
in  time  of  peace"  were  annulled,  adding  that  this  was  exactly  what  he 
had  proposed  to  himself  in  fixing  these  two  points  "as  equi-ponder- 
ating  each  other."     (Gourgaud,  Memoirs,  vol.  2,  p.  129.) 

Finally,  Senator  Livingston,  familiar  with  the  whole  subject  as  a 
contemporary,  in  his  report  upon  it  to  the  Senate,  said : 

The  committee  think  it  sufficiently  shown  that  the  claim  for 
indemnities  was  surrendered  as  an  equivalent  for  the  discharge 
of  the  United  States  from  its  heavy  national  obligations,  and 
for  the  damages  that  were  due  for  their  preceding  non-perform- 
ance of  them.  If  so,  can  there  be  a  doubt,  independent  of  the 
constitutional  provision,  that  the  sufferers  are  entitled  to  in- 
demnity? Under  that  provision  is  not  this  right  converted  into 
one  that  we  are  under  the  most  solemn  obligations  to  satisfy? 
To  lessen  the  public  expenditure  is  a  great  legislative  duty;  to 
lessen  it  at  the  expense  of  justice,  public  faith,  and  constitutional 
right  would  be  a  crime.  Conceiving  that  all  these  require  that 
relief  should  be  granted  to  the  petitioners,  they  beg  leave  to  bring 
in  a  bill  for  that  purpose. 

The  word  "national"  has  been  largely  used  in  argument  in  allusion 
to  the  different  kinds  of  claims  at  different  periods  brought  into  the 
discussion,  and  is  a  convenient  word  if  clearly  understood  in  the  con- 
nection in  which  it  is  used.  All  claims  are  "national"  in  the  sense  of 
the  jus  gentium,  for  no  nation  deals  as  to  questions  of  tort  with  an 


278  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

alien  individual ;  the  rights  of  that  individual  are  against  his  Govern- 
ment, and  not  until  that  Government  has  undertaken  to  urge  his 
claim — not  until  that  Government  has  approved  it  as  at  least  prima 
facie  valid — does  it  become  a  matter  of  international  contention ;  then, 
by  adoption,  it  is  the  claim  of  the  nation,  and  as  such  only  is  it  re- 
garded by  the  other  country.  The  name  of  the  individual  claimant 
may  be  used  as  a  convenient  designation  of  the  particular  discussion, 
but  as  between  the  nations  it  is  never  his  individual  claim,  but  the  claim 
of  his  Government  founded  upon  injury  to  its  citizen.  Nations  nego- 
tiate and  settle  with  nations ;  individuals  have  relations  only  with  their 
own  Governments.  Other  claims,  sometimes  the  subject  of  argument, 
rest  upon  injury  to  the  state  as  a  whole;  of  these  an  apt  illustration 
is  found  in  the  so-called  "indirect"  claims  against  Great  Britain,  dis- 
posed of  in  the  arbitration  of  1872,  and  in  the  claims  advanced  by 
France  for  injury  caused  by  non-compliance  with  the  treaties  of  1778. 
Thus,  while  all  claims  urged  by  one  nation  upon  another  are,  tech- 
nically speaking,  "national,''  it  is  convenient  to  use  colloquially  the 
words  "national"  and  "individual"  as  distinguishing  claims  founded 
upon  injury  to  the  whole  people  from  those  founded  upon  injury  to 
particular  citizens.  Using  the  words  in  this  sense,  it  appears  that  in 
the  negotiations  prior  to  the  treaty  of  1800,  and  in  effect  in  the  instru- 
ment itself,  national  claims  were  advanced  by  France  against  indi- 
vidual claims  advanced  by  the  United  States.  France  urged  that  she 
had  been  wronged  as  a  nation ;  we  urged  that  our  citizens'  rights  had 
been  invaded.  If  "national"  claims  had  been  used  against  "national" 
claims,  and  the  one  class  had  been  set  off  against  the  other  in  the 
compromise,  of  course  the  agreement  would  have  been  final  in  every 
way,  as  the  surrender  and  the  consideration  therefor  would  have  been 
national,  and  no  rights  between  the  individual  and  his  own  Govern- 
ment could  have  complicated  the  situation.  But  in  the  negotiation 
of  1800  we  used  "individual"  claims  against  "national"  claims,  and 
the  set-off  was  of  French  national  claims  against  American  individual 
claims.  That  any  Government  has  the  right  to  do  this,  as  it  has  the 
right  to  refuse  war  in  protection  of  a  wronged  citizen,  or  to  take  other 
action,  which,  at  the  expense  of  the  individual,  is  most  beneficial  to  the 
whole  people,  is  too  clear  for  discussion.  Nevertheless,  the  citizen 
whose  property  is  thus  sacrificed  for  the  safety  and  welfare  of  his 
country  has  his  claim  against  that  country ;  he  has  a  right  to  com- 
pensation, which  exists  even  if  no  remedy  in  the  courts  or  elsewhere 


GRAY  V.  UNITED  STATES  279 

be  given  him.  A  right  often  exists  where  there  is  no  remedy,  and  a 
most  frequent  illustration  of  this  is  found  in  the  relation  of  the  sub- 
ject to  his  sovereign,  the  citizen  to  his  Government. 

It  seems  to  us  that  this  "bargain"  (again  using  Madison's  word), 
by  which  the  present  peace  and  quiet  of  the  United  States,  as  well  as 
their  future  prosperity  and  greatness  were  largely  secured,  and  which 
was  brought  about  by  the  sacrifice  of  the  interests  of  individual  citi- 
zens, falls  within  the  intent  and  meaning  of  the  Constitution,  which 
prohibits  the  taking  of  private  property  for  public  use  without  just 
compensation.  We  do  not  say  that  for  all  purposes  these  claims  were 
"property"  in  the  ordinarily  accepted  and  in  the  legal  sense  of  the 
word ;  but  they  were  rights  which  had  value,  a  value  inchoate,  to  be 
sure,  and  entirely  dependent  upon  adoption  and  enforcement  by  the 
Government ;  but  an  actual  money  value  capable  of  ascertainment  the 
m.oment  the  Government  had  adopted  them  and  promised  to  enforce 
them,  as  it  did  in  August,  1793,  and  constantly  thereafter.  That  the 
use  to  which  the  claims  were  put  was  a  public  use  can  not  admit  of  a 
doubt,  for  it  solved  the  problem  of  strained  relations  with  France 
and  forever  put  out  of  existence  the  treaties  of  1778,  which  formed  an 
insuperable  obstacle  to  our  advance  in  paths  of  peace  to  the  achieve- 
ment of  commercial  greatness. 

The  defendants  urge  further  that  the  treaty  of  1803  finally  disposed 
of  all  pretensions  of  citizens  of  the  United  States  in  regard  to  these 
spoliations. 

One  of  the  principal  objects  of  this  treaty  is  found  in  the  instruc- 
tions to  Mr.  Livingston,  our  minister,  wherein  the  Secretary  of  State 
directed  his  particular  attention  to  claims  embraced  in  the  fourth  arti- 
cle of  the  treaty  of  1800,  describing  them  as  arising  from:  "(1)  Cases 
of  capture  wherein  no  judicial  proceedings  have  been  had ;  (2)  cases 
carried  before  French  tribunals,  and  not  definitively  decided  on  the 
30th  September,  1800;  (3)  captures  made  subsequent  to  that  date." 
(Madison  to  Livingston,  Sept.  28,  1801,  Doc.  102,  p.  701.) 

Accordingly  Mr.  Livingston  in  January  following  complained  to  the 
French  Government  of  infractions  of  the  existing  treaty  (of  1800)  in 
relation  to  "vessels  taken  after  its  signature,"  "vessels  previously  taken 
where  no  judicial  proceedings  had  been  had,"  "vessels  on  which  no 
definitive  sentence  had  been  given  before  that  day,"  or  which  were 
removable  to  the  council  of  prizes;  these  are  fourth-article  claims 
embraced  in  the  modus  znTendt  therein  provided.      Claims  for  vessels 


280  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

which  were  to  have  been  restored  are  clearly  not  claims  which  had 
matured  prior  to  September  30,  1800,  when  the  treaty  was  signed. 
{Ibid.  704.) 

In  the  next  month  (February  24,  1802)  Mr.  Livingston  speaks  of 
the  differences  as  "debts,"  about  which  he  must  transmit  to  his  Gov- 
ernment a  statement  of  the  measures  about  to  be  adopted  by  France, 
"with  a  view  either  to  afford  it  the  satisfaction  that  it  will  always 
feel  in  contributing  to  the  interests  of  France  .  .  .  or  of  put- 
ting a  stop  to  credits  that  must  be  ruinous  to  its  citizens  already  suf- 
fering under  heavy  losses  sustained  by  the  detention  of  a  considerable 
capital  in  the  hands  of  the  French  Government."  {Ibid.  708.)  It  is 
thus  apparent  that  these  claims,  in  the  view  of  the  negotiator,  rested 
substantially  on  contract,  and  it  is  further  apparent  from  the  text  of 
the  note  that  these  contracts  were  for  supplies  to  the  French  fleets  and 
armies. 

This  is  the  first  subject  of  negotiation;  the  second  is  as  to  the  coun- 
cil of  prizes,  about  which  there  were  "daily  complaints  of  their  entire 
disregard  of  the  treaty,"  so  much  so  that  when  a  vessel  was  ordered 
restored  it  was  sent  back  in  a  damaged  state  and  charged  with  cost  of 
"detention,  storage,  etc."  Fourth-article  claims  these,  as  we  have  al- 
ready seen. 

Livingston  later  (April  17,  1802),  in  discussing  the  fifth  and  second 
articles  of  the  treaty  of  1800,  says: 

The  fifth  article  expressly  stipulates  that  all  debts  due  by  either 
Government  to  the  individuals  of  the  other  shall  be  paid,  but  as 
this  would  also  have  included  the  indemnities  for  captures  and 
condemnations  previously  made,  and  it  was  the  intention  of  the 
contracting  parties,  by  the  second  article,  to  preclude  this  pay- 
ment as  depending  on  a  future  negotiation,  it  was  necessary  to 
except  from  this  promise  of  payment  all  that  made  the  subject  of 
the  second  article.  .  .  .  On  its  [the  second  article]  being 
erased,  the  fifth  article  stands  alone  as  a  promise  to  pay,  with  the 
single  exception  of  indemnities  for  captures  and  condemnations. 
{Ibid.  717.) 

And  he  adds  that  so  far  as  relates  to  indemnities  for  captures  and 
condemnations  which  had  been  made  previous  to  the  signature  of  the 
treaty  his  demands  could  not  be  supported. 

It  seems  hardly  necessary  to  quote  further  from  the  correspondence, 
which  shows  that  Mr.   Livingston  not  only  never  had  in  mind,  but 


GRAY  V.  UNITED  STATES  281 

•expressly  excluded,  second-article  claims,  directing  his  attention  first 
to  debts,  "confinned  by  treaty,"  as  he  says  (ibid.  729),  and  second,  to 
vessels  seized  during  or  after  the  negotiation  of  the  treaty  of  1800; 
that  is,  claims  "confirmed,"  to  use  his  word,  by  that  treaty's  fourth 
and  fifth  articles. 

The  distinction  between  different  classes  of  claims  then  existing 
■between  the  United  States  and  France  must  be  clearly  marked  out 
before  the  treaty  of  1803  can  be  properly  understood.  The  second 
article  of  the  treaty  of  1800  covered  claims  for  illegal  seizures  and 
condemnations  which  were  tied  to  the  treaties  of  1778.  But  all  the 
illegal  captures  were  not  covered  by  that  second  article,  for  the  fourth 
article  treated  of  others ;  that  is,  of  "property  captured,  and  not  yet 
definitively  condemned,  or  which  may  be  captured  before  the  exchange 
of  ratifications ;"  and  this  property,  it  was  agreed,  should  be  restored. 
That  is,  while  the  negotiations  of  the  Ellsworth  mission  were  pro- 
ceeding the  French  decrees  remained  in  force  and  spoliations  had  not 
stopped ;  the  cases  of  some  seized  American  vessels  were  then  pend- 
ing before  the  French  tribunals,  and  these  were  the  ones  to  be  restored 
if  not  "definitively  condemned"  by  the  time  the  treaty  became  a  law ; 
others  might  be  seized  pending  the  discussion  and  before  exchange 
of  ratifications ;  in  fact  such  seizures  were  made,  and  these  also  were 
to  be  restored. 

Additional  proof  that  this  fourth  article  was  in  effect  a  mere  modus 
Vivendi  is  found  in  its  concluding  paragraph,  which  provides  that  it 
shall  take  effect  from  the  date  of  signature,  not  from  the  exchange  of 
ratifications,  and  that  if  any  property  should  be  condemned — that  is 
condemned  in  the  future — before  knowledge  of  the  stipulation  "shall 
be  obtained,  the  property  shall  without  delay  be  restored  or  paid  for." 
Now,  the  property  covered  by  this  article,  to  wit,  that  then  before  the 
tribunals  or  which  might  thereafter  come  before  the  tribunals  before 
the  new  treaty  took  effect,  never  was  restored  or  paid  for,  although 
spoliations  continued  for  some  time. 

It  is  important  here  to  note  the  distinction  between  the  position 
as  against  the  French  Government  of  cases  pending  during  the  nego- 
tiation or  which  might  thereafter  arise  and  that  of  cases  now  before 
this  court  wherein  the  condemnation  had  occurred  before.  This  claim 
and  those  like  it  were  "claims  to  indemnity"  merely ;  the  property  had 
disappeared  and  could  not  be  restored,  the  French  tribunals  had  defini- 
tivel)'-  acted,  and  payment  for  it  would  be  made  only  upon  admission 


282  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

by  the  United  States  of  the  continuing  force  of  the  ancient  treaties; 
while,  as  to  then  pending  cases  the  property  could  be  restored,  or  in 
case  of  mistaken  sale  its  value  could  be  easily  and  immediately  ascer- 
tained, and  the  fourth  article  absolutely  promised  restoration  or  pay- 
ment. 

The  agreement  of  1803  is  contained  in  three  instruments  forming 
the  contract  by  which  we  acquired  Louisiana;  these  treaties  give  no 
rights  to  these  claimants,  as  is  popularly  supposed;  on  the  contrary, 
it  is  contended  by  the  Government  that  any  rights  which  ever  existed 
were  destroyed  by  them.  The  third  treaty,  providing  for  the  payment 
of  "sums  due  by  France  to  the  citizens  of  the  United  States,"  is  the 
only  one  bearing  upon  these  cases. 

Article  1  provides  that  these  "sums,"  called  "debts,"  contracted  be- 
fore September  30,  1800  (the  date  of  the  prior  treaty),  shall  be  paid, 
with  interest. 

Article  2  describes  the  debts  as  those  set  forth  in  an  annexed  con- 
jectural note,  which  is  a  list  of  claims  allowed  by  the  French  account- 
mg  officers  for  such  articles  as  rice,  flour,  salt  beef,  cloth,  leather,  cot- 
ton and  indigo,  wines  and  spirits ;  while  article  6  limits  the  preceding 
articles  to  debts  still  due  American  citizens  yet  creditors  of  France 
"for  supplies,  for  embargoes,  and  prizes  made  at  sea  in  which  the 
appeal  has  been  properly  lodged  within  the  time  mentioned  in  the 
convention"  of  1800.  But  there  is  no  such  time  mentioned  in  that  con- 
vention, nor  is  there  a  word  in  it  looking  to  any  appeal  whatever  from 
decisions  of  inferior  tribunals ;  the  only  provision  about  prizes  in  that 
treaty  is  that  contained  in  its  fourth  article,  directing  that  in  the  future 
they  be  restored. 

Proceeding  now  to  article  5  of  this  somewhat  mysterious  instrument 
of  1803,  we  find  another  limitation  upon  the  preceding  articles,  to 
wit,  that  they  shall  cover  only  captures  wherein  the  council  of  prizes 
has  ordered  restitution  if  the  claim  was  valid  against  France,  and  then 
only  in  case  of  "insufficiency  of  the  captors,"  /.  e.,  that  the  privateer's 
bond  was  not  good.  Further,  it  shall  apply  to  debts  mentioned  in  the 
fifth  article  of  the  treaty  of  1800,  that  is,  "debts"  (not  claims  for 
damage  by  tort)  due  by  one  nation  to  citizens  of  the  other,  and  this 
fifth  article  of  1800  expressly  bars  claims  for  captures  or  confisca- 
tions, while  the  fifth  article  of  1803  expressly  does  not  comprehend 
"prizes  whose  condemnation  has  been  or  shall  be  confirmed."  There- 
fore, by  this  series  of  limitations,  the  scope  of  the  treaty  of  1803  is 


GRAY  V.  UNITED  STATES  283 

confined  on  its  face,  and  so  far  as  the  cases  at  bar  are  interested 
in  it,  to  captures,  of  which  the  council  of  prizes  shall  have  ordered 
restitution,"  provided  the  claim  was  a  vahd  one  and  the  captor  insuffi- 
cient. Really,  there  does  not  seem  very  much  left  of  it,  sO'  far  as 
"embargoes  and  prizes  made  at  sea"  (Art.  4)  are  concerned. 

The  significant  fact  is  stated  to  us  by  counsel  in  this  connection  that 
there  were  presented  to  the  commission  formed  under  the  treaty  of 
1831,  which  we  shall  soon  have  occasion  to  examine,  claims  for  two 
vessels,  the  Caroline  and  the  Orlando,  which  were  rejected  upon  the 
express  ground  that  the  captures  were  made  prior  to  September  30, 
1800.  Further,  the  report  of  the  board  under  the  treaty  of  1803  shows 
that  only  eight  captures  at  sea  were  allowed,  a  ridiculously  small  num- 
ber if  the  class  of  claims  now  at  bar  were  within  the  jurisdiction  of 
that  tribunal. 

That  the  settlement  and  payment  of  "debts,"  not  of  claims  for  tort, 
was  the  primary  object  of  the  treaty  of  1803  is  explained  in  its  pre- 
amble and  is  apparent  from  its  text,  while  the  treaty  of  1800  dealt  with 
torts  and  indemnities  for  wrongs  committed  upon  our  commerce.  The 
claim  for  debts  was  not  sacrificed  by  the  treaty  of  1800,  but  kept  alive 
by  the  fifth  article,  which,  in  further  proof  of  the  abandonment  of 
claims  for  tort,  explicitly  excepted  from  the  benefits  of  its  provisions 
all  "indemnities  claimed  on  account  of  captures  and  confiscations." 
But  these  "debts  contracted  by  one  of  the  two  nations  with  individuals 
of  the  other"  were  not  paid  as  the  treaty  of  1800  promised,  nor,  as 
Mr.  Livingston  said  to  the  French  Government  in  1802,  was  there  the 
most  "distant  hope  of  their  payment."     (Doc.  102,  p.  714.) 

The  association  of  the  second  and  fifth  articles  of  the  treaty  of  1800 
in  the  preamble  of  the  treaty  of  1803  has  been  deemed  significant  as 
showing  an  intention  to  revive  and  settle  the  second-article  claims  now 
commonly  known  as  "spoliation"  claims,  whereas  the  allusion  was  in- 
tended to  reaffirm  the  exclusion  of  these  claims  already  made  by  the 
second  article;  for  the  fifth  article  (1800)  includes  "debts"  which  are 
to  be  settled  and  expressly  excludes  "indemnities";  that  is,  excludes 
the  subject-matter  of  the  second  article,  which  was  not  to  be  settled; 
so  that  France,  being  desirous  in  1803,  as  the  preamble  says,  "in  com- 
pliance with  the  second  and  fifth  articles  of  the  convention  of  1800  to 
secure  the  payment  of  the  sums  due  by  France  to  the  citizens  of  the 
United  States,"  covenanted  to  pay  "debts,"  not  indemnity  for  torts 
other  than  those  specified,  and  which  had  been  turned  into  debts  bv 


.284  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  fourth  article  of  the  treaty  of  1800.  To  put  it  in  another  form: 
as  the  original  second  article  had  ceased  to  exist,  and  was  replaced 
by  a  provision  that  the  treaty  should  last  eight  years,  of  course  a  refer- 
ence to  this  new  second  article  in  the  treaty  of  1803  would  have  been 
absurd ;  so  we  must  conclude  that  the  negotiators  referred  to  the  orig- 
inal second  article,  the  article  which  had  been  expunged  by  agreement. 
That  article,  so  far  as  claims  of  citizens  were  concerned,  referred  to 
torts  and  nothing  else;  the  fifth  article  referred  to  "debts,"  and  pro- 
vided that  payment  should  be  made  therefor;  and  then  went  on  to 
make  an  express  exclusion  from  its  benefits  of  claims  for  captures  and 
confiscations,  that  is,  claims  arising  from  torts  which  were  covered  by 
the  second  article  as  it  then  stood.  What  more  natural,  then,  that,  in 
rehearsing  the  objects  of  the  treaty  of  1803,  the  two  articles  should  be 
brought  together  in  the  preamble,  the  fifth  article  as  embracing  the 
debts  due  and  the  second  article  as  covering  the  express  exception 
made  in  the  fifth  article,  which  "includes  debts  contracted,"  and  ex- 
cludes "indemnities  claimed  on  account  of  captures  and  confiscations"? 
The  language  of  the  preamble  is,  therefore,  in  compliance  with  the 
second  as  well  as  with  the  fifth  article  of  the  treaty  of  1800. 

We  are  of  opinion  that  the  treaty  of  1803  had  no  reference  to  the 
claims  embraced  in  the  second  article  of  the  treaty  of  1800. 

Turning  to  the  particular  case  now  on  trial  we  consider  it  with  the 
principle  admitted  that  the  claims  popularly  known  as  "French  spolia- 
tion claims"  were,  as  a  class,  and  if  embraced  in  the  description  of 
the  second  article  of  the  treaty  of  1800,  valid  claims  against  France, 
which  were  surrendered  by  our  Government  for  the  valuable  con- 
sideration found  in  a  release  from  the  obligations  of  the  treaties  of 
1778,  and  that,  by  this  action,  the  Government  of  the  United  States 
assumed  the  liabilities  of  France  in  regard  to  them,  and  is  in  duty 
bound  to  recompense  the  individuals  who  suffered  loss  by  the  illegal 
captures  and  condemnations. 

The  findings  show  that  the  schooner  Sally,  owned  by  Americans, 
commanded  by  an  American,  and  laden  with  an  American  cargo,  while 
on  a  commercial  voyage  from  Massachusetts  to  Spain,  was,  on  the  5th 
day  of  June,  1797,  seized  by  the  French  privateer  Intrepide,  taken  to 
the  port  of  Nantes,  there  condemned  by  a  French  tribunal,  and  "con- 
fiscated" for  the  benefit  of  the  privateer.  It  was  not  alleged  that  she 
had  violated  the  law  of  nations,  either  by  attempting  a  blockade  or  by 
carrying  contraband,  or  in  any  other  manner,  but  that  she  had  violated 


GRAY  V.  UNITED  STATES  285 

a  local  French  municipal  regulation  "concerning  the  navigation  of 
neutrals."  It  appears  upon  the  face  of  the  decree  that  the  Govern- 
ment of  France,  through  laws  passed  by  its  own  legislature,  valid 
within  its  territorial  jurisdiction  and  upon  its  own  ships,  but  not  else- 
where, attempted  to  regulate  the  conduct  of  neutral  merchantmen  upon 
the  high  seas,  where  they  were  subject  only  to  the  laws  of  their  own 
country  and  that  law  of  abstract  right  and  justice  which  by  mutual 
consent  has  become  crystallized  into  the  law  of  nations. 

To  learn  wherein  the  schooner  violated  the  French  decree  we  must 
turn  to  the  findings,  which  rehearse  the  judgment  of  the  tribunal,  as 
follows : 

"That  while  the  master  may  be  correct  in  the  sum  total  of  his 
clearance  papers  he  is  flagrantly  at  fault  as  to  his  crew-list,"  and  "con- 
sidering that  the  obligation  common  to  the  French  nation  and  to  the 
United  States,  and  which  constitutes  the  safety  of  their  respective 
navigation,  is  defined  by  the  treaty  of  February  6,  1778,  which  de- 
cides, articles  25  and  27,  that  every  captain  who  receives  a  passport 
must  be  provided  with  a  list,  signed  and  attested  by  witnesses,  con- 
taining the  names  and  surnames  and  place  of  birth  and  residence  of 
the  persons  composing  the  crew  of  his  ship  and  of  all  persons  embark- 
ing upon  her,  which  he  will  not  receive  without  the  knowledge  and  per- 
mission of  the  naval  officers.  Considering  that  the  memorandum  or 
crew-list  fulfills  none  of  these  formalities,  inasmuch  as  it  is  unsigned, 
that  the  places  of  birth  and  residence  of  the  men  composing  the  crew 
are  not  declared,  and  the  permission  of  the  naval  officer  is  not  given ; 
considering  that  article  6  of  section  7  of  the  marine  regulations  of 
T781  declares  to  be  lawful  prize  the  cargoes  of  confiscated  ships,"  and 
"considering  finally  that  article  4  of  the  decree  of  the  Executive  Di- 
rectory of  the  12th  Ventose,  year  five,  is  clear  and  precise,  and  that 
it  declares  to  be  a  good  and  lawful  prize  every  American  ship  which 
shall  not  have  a  crew-list  in  due  form  such  as  is  described  by  the  model 
annexed  to  the  treaty  of  February  6,  1778,"  therefore,  the  court,  in 
conformity  with  these  laws,  and  especially  with  article  4  of  the  said 
decree,  declared  valid  the  capture  of  the  Sally  and  her  cargo,  and 
declared  the  captain  to  belong  to  the  "enemies  of  the  Republic"  be- 
cause he  did  not  have  a  crew-list  in  conformity  with  the  French  decree. 

The  vessel  and  cargo  were  confiscated  because  the  crew-list,  the 
"role  d'equipage,"  was  not  in  form,  although  there  is  not  a  word  or 
sentence,  as  the  French  afterwards  admitted  (Doc.  102,  p.  637),  in  the 


286  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

treaties  of  1778  requiring  any  such  document.  The  French  decree  re- 
quired it,  but  we  can  not  admit  that  the  government  of  a  foreign 
country  may  stretch  its  arm  over  the  ocean,  and,  seizing  an  American 
vessel,  direct  it  as  to  the  papers  it  shall  carry,  under  penalty  of  confis- 
cation. There  is  no  allegation  in  the  proceeding  that  the  Sally  did  not 
have  all  the  papers,  other  than  this  crew-list,  required  by  the  treaty 
of  1778  and  the  laws  of  the  United  States.  In  fact,  the  court  itself 
admits  this  in  saying  that  the  captain  is  correct  "in  the  sum  total  of 
his  clearance  papers,  .  .  .  but  flagrantly  in  fault  as  to  his  crew- 
list."  How  flagrantly  at  fault  ?  He  had  complied  with  the  laws  of  his 
country,  he  had  not  violated  a  provision  of  the  treaties  of  1778,  and 
it  is  not  hinted  that  he  infringed  the  law  of  nations  or  intended  to 
dc  so. 

The  confiscation  rests  upon  the  decree  of  March  2,  1797,  authorizing 
the  seizure  and  condemnation  of  every  American  vessel  not  having  on 
board  "a  role  d' equipage,  in  proper  form,  such  as  is  prescribed  by  the 
model  annexed  to  the  treaty  of  the  6th  of  February,  1778."  A  "role 
d' equipage"  is  for  all  practical  purposes  a  "crew-list,"  although  tech- 
nically, under  French  regulations,  it  contains  the  names  of  all  on  board, 
including  the  passengers.  Still  "crew-list"  is  a  sufficient  translation 
for  the  purposes  of  this  case. 

The  treaty  of  1778  required  vessels  of  each  party  to  be  furnished 
with  a  passport  and  a  certificate  as  to  her  cargo  and  destination,  but 
no  mention  whatever  is  made  of  a  crew-list.  Seizures  on  account  of 
the  lack  of  this  instrument  were,  however,  made  even  before  the  de- 
cree of  March,  1797,  and  our  consul-general,  in  calling  attention  to  this 
fact,  said  to  the  minister  of  foreign  affairs  (Feb.  23,  1797,  ibid.  155)  : 

By  no  regulations  of  the  United  States  are  our  ships  subjected 
to  this  formality;  and  not  one  of  our  vessels  has  {role  d'equipage) 
a  crew-list  thus  countersigned.  Moreover,  in  the  different  treaties 
and  conventions  that  connect  France  with  America  there  is  not 
found  a  single  article  sufficient  to  justify  the  doctrine  set  forth 
by  the  privateer.  ...  I  consider  it  unnecessary  for  me  to 
communicate  on  this  subject  the  right  and  supreme  law  of  nations, 
being  persuaded  that  you  will  think  with  me  that  every  free  and 
independent  nation  should  possess  the  exclusive  right  to  estab- 
lish regulations  for  the  management  of  their  own  navigation ;  and 
that  no  nation  possesses  the  right  to  subject  the  citizens  of  another 
power  to  formalities  to  be  observed  in  a  foreign  country  not  ex- 
acted by  the  laws  of  said  country  or  by  those  to  which  said  citizens 


GRAY  V.  UNITED  STATES  287 

beltMig.  .  .  .  The  principle  which  the  captain  [of  the  priva- 
teer] desires  to  see  established  would  lead  to  the  condemnation 
of  all  the  ships  belonging  to  my  nation  actually  found  in  the  dif- 
ferent ports  of  France,  under  the  faith  of  treaties,  and  to  author- 
ize the  cruisers  of  the  Republic  to  capture  all  our  merchantmen. 

Mr.  Pinckney  afterwards  (May  15,  1797,  ibid.  171)  writes: 

Our  papers  are,  as  they  ought  to  be,  according  to  the  maritime 
laws  of  our  country. 

And  again  (June  28,  1797,  ibid.  176)  : 

Mr.  Adet  [the  French  minister]  arrived  at  Havre  in  an  Ameri- 
can ship  without  a  role  d'equipage.  The  Courier  Maritime  du 
Havre  .  .  .  infers  that  Mr.  Adet  must  have  been  con- 
vinced, with  all  other  publicists,  that  a  role  d'equipage  was  not 
necessary,  and  that  all  that  was  requisite  was  a  passport  con- 
formable to  the  model  annexed  to  the  treaty  of  1778. 

Mr.  Pickering,  then  Secretary  of  State,  wrote  the  next  year  (Dec. 
13,  1798,  ibid.  429)  : 

There  is  no  shadow  of  foundation  for  the  claims  set  up  by  the 
French  Government  of  the  necessity  of  our  vessels  being  provided 
with  a  role  d'equipage. 

In  default  of  express  treaty  provision  no  Government  can  prescribe 
to  our  merchantmen  navigating  the  high  seas  the  detailed  form  and 
number  of  the  papers  they  are  to  carry,  nor  seize  or  confiscate  those 
merchantmen  for  non-compliance  with  that  nation's  municipal  statutes. 
The  seizure  of  this  vessel,  and  of  others  under  like  conditions,  was 
clearly  illegal  and  unjustifiable. 

The  defendants  say,  further,  the  condemnation  can  not  be  illegal 
because  made  by  a  prize  court  having  jurisdiction,  and  the  decisions 
of  such  courts  are  final  and  binding.  This  proposition  is  of  course 
admitted  so  far  as  the  res  is  concerned ;  the  decision  of  the  court,  as 
to  that,  is  undoubtedly  final,  and  vests  good  title  in  the  purchaser  at  the 
sale;  not  so  as  to  the  diplomatic  claim,  for  that  claim  has  its  very 
foundation  in  the  judicial  decision,  and  its  validity  depends  upon  the 
justice  of  the  court's  proceedings  and  conclusion.  It  is  an  elementary' 
doctrine  of  diplomacy  that  the  citizen  must  exhaust  his  remedy  in  the 


288  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

local  courts  before  he  can  fall  back  upon  his  Grovernment  for  diploma- 
tic redress;  he  must  then  present  such  a  case  as  will  authorize  that 
Government  to  urge  that  there  has  been  a  failure  of  justice.  The 
diplomatic  claim,  therefore,  is  based  not  more  upon  the  original  wrong 
upon  which  the  court  decided  than  upon  the  action  and  conclusion  of 
the  court  itself,  and,  diplomatically  speaking,  there  is  no  claim  until 
the  courts  have  decided.  That  decision,  then,  is  not  only  not  final,  but, 
on  the  contrary,  is  the  beginning,  the  very  corner-stone,  of  the  inter- 
national controversy.  This  leads  us  naturally  to  another  point  made 
by  the  defense  in  that  the  claimant  did  not  "exhaust  his  remedy," 
because  he  did  not  prosecute  an  appeal.  We  of  course  admit  that 
usually  there  is  no  foundation  for  diplomatic  action  until  a  case  cog- 
nizable by  the  local  courts  is  prosecuted  to  that  of  last  resort ;  but  this 
doctrine  involves  the  admission  that  there  are  courts  freely  open  to  the 
claimant,  and  that  he  is  unhampered  in  the  protection  of  his  rights 
therein,  including  his  right  of  appeal.  It  is  within  the  knowledge  of 
every  casual  reader  of  the  history  of  the  time  that  no  such  condition 
of  affairs  in  fact  then  existed. 

The  very  valuable  report  of  Mr.  Broadhead  shows  (pp.  6  and  7) 
that  prior  to  March  27,  1800,  there  was  practically  no  appeal  in  these 
cases  except  to  the  department  of  the  Loire-Inf erieure ;  in  the  then 
existing  state  of  bad  feeling  and  modified  hostilities,  and  under  the 
surrounding  circumstances,  this  was  to  the  captains  of  the  seized  ves- 
sels, in  most  if  not  in  all  cases,  a  physical  impossibility.  Nor  prior 
to  the  agreement  of  180O  was  there  any  practical  reason  for  appealing 
to  a  court  when  the  result,  as  our  seamen  believed,  whether  rightly  or 
not,  but  still  honestly,  was  a  foregone  conclusion,  and  while  negotia- 
tions were  progressing  for  a  settlement ;  nor  is  there  anything  in  these 
negotiations  showing  that  a  technical  exhaustion  of  legal  remedy 
■would  be  required.  We  are  of  opinion  that  the  claimant  was  not, 
under  these  purely  exceptional  circumstances,  obliged  to  prosecute  his 
case  through  the  highest  court,  even  if  he  could  have  done  so,  which 
we  doubt. 

This  court  is  forbidden  by  the  act  conferring  jurisdiction  not  only 
to  examine  claims  embraced  in  the  treaty  of  1803,  which  we  have  con- 
sidered, but  also  those  allowed  and  paid  in  whole  or  in  part  under  the 
treaty  of  1819  with  Spain  and  those  allowed  in  whole  or  in  part 
under  the  treaty  of  1831  with  France. 

The  reference  heretofore  made  in  this  opinion  to  the  Spanish  treaty 


GRAY  V.  UNITED  STATES  289 

is  sufificient  to  show  its  inapplicability  to  vessels  seized  on  the  high 
seas  by  a  French  privateer,  taken  to  a  French  port  and  there  illegally 
condemned  and  confiscated ;  so  that  treaty  may  be  thrown  out  of  the 
consideration  of  this  case. 

The  treaty  of  1831  is  a  claims  treaty,  by  which  the  French  Gov- 
ernment, "in  order  to  liberate  itself  completely  from  all  the  reclama- 
tions preferred  against  it  by  citizens  of  the  United  States  for  unlawful 
seizures,  captures,  sequestrations,  confiscations,  or  destructions  of  their 
vessels,  cargoes,  or  other  property,"  agreed  to  pay  25,000,000  francs 
to  the  United  States,  for  distribution  (Art.  1),  while  the  United 
States  on  their  part  agreed  to  pay  to  France  for  claims,  described 
in  language  somewhat  similar,  the  sum  of  1,500,000  francs  (Art.  3). 
As  to  other  claims  each  country  opened  its  courts  to  the  citizens  of 
the  other,  and  finally  France  abandoned  its  demands  under  the  eighth 
article  of  the  Louisiana  treaty  in  return  for  a  reduction  of  duties  upon 
French  wines. 

The  wording  of  this  treaty  is  broad  enough  at  first  glance  to  sus- 
tain the  defendants'  contention  that  these  claims  are  included  in  it ; 
but  treaties  and  statutes,  like  every  other  document,  must  be  read  in 
the  light  of  the  facts  as  they  existed  at  the  time.  A  treaty  now- 
made  with  Great  Britain  providing  a  settlement  of  "all  claims"  could 
not  be  held  to  reopen  the  proceedings  of  the  Geneva  arbitration  and 
to  authorize  payment  of  claims  there  dismissed,  for  the  award  was 
final,  both  as  to  what  was  allowed  and  as  to  what  was  refused.  Nor 
could  a  similar  general  convention  with  France  permit  an  opening 
of  the  proceedings  of  the  Franco-American  Commission  with  pos- 
sible payment  of  claims  there  refused  and  declared   forever  barred. 

Such  treaties  look  not  to  dead  issues,  but  to  living  pending  claims. 
forming  at  the  time  a  subject  of  contention  between  the  Governments, 
and  not  to  those  universally  regarded  as  finally  settled.  Claims  of  the 
class  of  the  one  at  bar  had  been  disposed  of  in  1801,  when  the  Presi- 
dent and  Senate  concurred  in  Napoleon's  stipulation  as  to  the  second 
article,  and  since  that  time,  although  they  had  been  constantly  pressed 
upon  the  United  States  as  an  obligation  of  that  Government  to  its 
citizens,  they  nowhere  appear  as  a  subject  of  discussion  between  the 
nations.  France,  by  the  treaty  of  1831,  desired  to  liberate  itself  from 
claims  "preferred  against  it,"  by  citizens  of  the  United  States,  but 
these  spoliation  claims  were  not  then  being  preferred  against  it ;  on 
the  contrary,  since  1801  the  claimants  had  turned  their  attention  ex- 


290  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

clusively  to  the  United  States,  recognizing  the  force  and  effect  of  what 
was  called  the  "retrenchment  of  the  second  article."  The  French 
Government  clearly  understood  this  treaty  of  1831  as  excluding  all 
American  claims  of  every  description  originating  prior  to  the  treaties 
of  1803.     (Ex.  Doc.  147,  22d  Cong.,  2d  sess.,  p.  165.) 

Our  commissioners  who  distributed  the  fund  also  so  understood  it, 
and  required  every  claimant  to  show  that  his  "claim  remained  unim- 
paired and  in  full  force  against  France"  in  1831.  (House  Ex.  Doc. 
117,  24th  Cong.,  1st  sess.,  p.  4.)  But  these  spoliation  claims  had  not 
only  been  impaired  but  destroyed  as  a  French  obligation  by  the  treaty 
of  1800;  many  cases  of  captures  made  prior  to  September  30,  1800, 
were  presented  to  the  board  and  rejected.     (Sumner's  Report,  p.  35.) 

A  broad  distinction  is  made  in  the  remedial  statute  (January  20, 
1885)  between  the  claims  described  in  these  different  treaties  of  1803, 
1819,  and  1831.  As  to  the  treaty  of  1803  the  act  does  not  extend  to 
claims  "embraced"  in  its  provisions;  as  to  the  treaty  of  1819  the  act 
does  not  extend  to  claims  "allowed  and  paid  in  whole  or  in  part" 
under  its  provisions;  as  to  the  treaty  of  1831  the  act  does  not  extend 
to  claims  "allowed  in  whole  or  in  part"  under  its  provisions.  It  is 
not  contended  that  this  claim  was  "allowed  in  whole  or  in  part"  under 
the  provisions  of  the  treaty  of  1831. 

We  have  not  considered  the  point  that  the  treaties  of  1778  were 
abrogated  by  the  act  of  Congress  passed  in  1798.  That  question, 
w^hich  the  ablest  minds  of  the  period  were  unable  to  solve,  and  which 
proved  an  ever  present  and  enduring  obstacle  to  all  negotiation  until 
forcibly  removed  by  Napoleon,  with  our  concurrence,  we  fortunately 
are  not  forced  to  deal  with.  The  rights  of  this  claimant  rest  upon 
no  convention,  but  are  founded  upon  international  law.  Treaty  or  no 
treaty,  a  foreign  nation  can  not  be  permitted  to  confiscate  an  American 
merchantman  engaged  in  legitimate  commerce  upon  the  high  seas  be- 
cause his  crew-list  does  not  fulfill  the  requirements  of  that  nation's 
local  ordinances.  That  the  act  of  Congress  was  binding  within  the 
jurisdiction  of  the  United  States  and  was  necessarily  to  be  so  re- 
garded by  our  courts  does  not  now  admit  of  question.  The  treaties 
were,  however,  not  only  part  of  the  supreme  law  of  the  land  wherein 
they  were  replaced,  within  the  jurisdiction  of  the  Constitution,  by  a 
later  supreme  law,  to  wit,  a  statute ;  but  they  were  also,  as  between  the 
two  Republics,  contracts,  which  one  of  the  parties  attempted  to  annul. 
Treaties  containing  no  clause  fixinsr  their  duration  are,  under  certain 


GRAY  V.  UNITED  STATES  291 

circumstances,  voidable  at  the  option  of  one  party.  Whether  there 
existed  in  1798  such  circumstances  as  authorized  and  made  valid  an 
abrogation  of  the  treaties  of  1778  by  the  United  States  was  the  very 
question  left  unsettled  by  the  treaty  of  1800,  the  one  question  upon 
which  by  no  possibility  apparently  could  the  parties  agree. 

For  the  same  reason  we  find  it  unnecessary  to  examine  how  far  the 
French  violated  the  agreement  by  their  treaty  of  1786  with  Great 
Britain  (15  Martens,  Recueil  de  Traitcs,  2  ed.,  vol.  4,  p.  155),  or  the 
effect,  by  way  of  abrogation  of  these  agreements,  of  the  Jay  treaty, 
or  the  change  in  the  form  of  government  in  France. 

Some  argument  has  been  made  as  to  the  ownership  of  this  claim, 
based  upon  the  provision  of  the  statute  that  the  court  shall  determine 
"the  present  ownership,  and  if  by  assignee,  the  date  of  the  assignment, 
with  the  consideration  paid  therefor."  (§  3.)  Whatever  may  have 
been  the  intention  of  Congress  in  inserting  this  provision,  its  terms 
are  perfectly  clear ;  the  findings  of  fact  show  in  this  case  that  the 
claimant  is  the  administrator  with  the  will  annexed  of  the  owner 
of  the  Sally,  and  show  all  other  facts  necessary  to  a  decision  upon 
the  subject,  except  as  to  one  of  the  defendants'  points;  as  to  this  we 
can  not  agree  that  Congress  intended  this  court  to  perform  what  is  in 
eflFect  a  physical  impossibility  and  to  throw  upon  us  the  task  of  probate 
courts  in  the  investigation  of  the  rights  of  thousands  of  descendants 
and  devisees  of  the  original  claimants,  who  are  now  scattered,  in  all 
human  probability,  to  the  four  quarters  of  the  globe.  To  ask  this 
court  to  go  back  to  the  year  1800  and  follow  from  that  time  down 
the  succession  of  every  then  existing  claimant  is  to  ask  us  to  do  that 
which  under  our  jurisdiction  and  powers  would  be  an  impossibility. 
A  much  more  reasonable  interpretation  of  the  act  appears  upon  its 
face,  and  applying  that  interpretation  to  this  case  we  have  found  that 
the  claimant,  as  administrator  of  the  owner  of  the  schooner  Sally,  is 
the  owner  of  the  claim.  We  consider  it  no  part  of  our  duty  under  the 
statute  to  place  ourselves  in  the  position  of  a  court  of  probate  and  re- 
port to  Congress  the  manner  in  which  any  ultimate  recovery  should 
under  the  laws  of  the  thirty-eight  States  and  eight  Territories  of  this 
Union  be  distributed  among  the  numerous  next  of  kin  or  devisees  of 
the  original  claimants  and  their  descendants.  The  administrators  are 
officers  of  those  probate  courts,  subject  to  their  jurisdiction  and  con- 
trol, and  presumably  have  filed  adequate  bonds  for  the  honest  and 
proper  performance  of  the  trust  reposed  in  them. 


292  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Congress  asks  us  for  two  facts :  First,  the  present  ownership. 
The  owner,  both  in  law  and  equity,  the  Supreme  Court  has  said,  is  the 
administrator  {V  ill  el  on  go's  Case,  23  Wall.  35),  and  that  suffices  for 
this  particular  case.  Secondly,  Congress  asks,  where  there  has  been 
an  assignment,  not  only  the  name  of  the  present  owner,  but  the  date 
of  the  assignment  and  the  consideration  paid  therefor.  Of  course 
these  facts  will  be  reported  when  such  a  case  is  presented. 

So  we  reach  the  end  of  this  opinion  as  unlike  the  usual  judicial  ex- 
pression in  its  form  and  supporting  authorities  as  are  the  cases  be- 
fore us  unlike  those  ordinarily  submitted  to  a  tribunal  of  the  law. 
We  are,  however,  for  the  moment  invested  with  some  of  the  powers 
and  jurisdiction  belonging  to  the  political  branch  of  the  Government, 
and  upon  us  is  imposed  an  examination  not  usually  or  naturally  com- 
mitted to  a  judicial  body.  We  have  been  required  not  to  investigate 
legal  rights,  based  upon  the  doctrines  and  principles  of  the  common 
law,  but  to  inquire  into  and  to  report  upon  the  ethical  rights  of  a 
citizen  against  his  Government;  rights  which  are  never  enforceable 
except  by  the  consent  of  the  sovereign — in  this  country  the  legislature 
— as  whose  substitute  we  act  to  the  limited  extent  prescribed  and 
marked  out  by  the  remedial  statute. 

The  result  which  we  have  reached  is  supported  by  resolutions  passed 
in  each  of  the  thirteen  original  States,  by  twenty-four  reports  made 
to  the  Senate  by  its  committees,  by  over  twenty  similar  reports  made 
to  the  House  of  Representatives,  by  the  fact  that  while  three  adverse 
reports  have  been  made,  one  to  the  Senate  and  two  to  the  House,  no 
adverse  report  has  been  made  in  either  body  since  the  publication  of 
the  correspondence  in  1826,  and  by  the  further  facts  that  the  Senate 
has  passed  eight  bills  in  favor  of  these  claimants,  and  the  House  has 
passed  three  of  these,  of  which  one  is  the  present  law,  the  other  two 
having  been  vetoed,  one  by  President  Polk,  substantially  upon  grounds 
not  at  this  time  important,  the  other  by  President  Pierce  for  reasons 
which  we  have  considered  very  fully  in  this  opinion,  and  with  which, 
after  the  most  careful  and  painstaking  consideration,  we  can  not  agree. 

The  arguments  of  counsel  for  claimants,  marked  as  they  were  by 
ability,  industry,  and  a  frank  desire  for  a  just  ascertainment  of  the 
rights  involved,  have  been  of  great  assistance  to  us ;  while  the  learned 
assistant  attorney  for  the  United  States  has  presented  the  defense  with 
a  zeal  and  force  of  argument  which  we  do  not  find  in  the  histor}'-  of 
the  long  discussions  it  has  heretofore  received. 


GUSHING  V.  UNITED  STATES  293 

The  chief  justice  and  all  the  judges  concur  in  this  opinion,  and  we 
shall,  in  accordance  with  the  statute,  report  to  Congress  the  conclu- 
sions of  fact  and  law  in  this  claim,  together  with  a  copy  of  this  opinion, 
which  contains  (using  the  words  of  the  statute)  the  conclusions  which, 
in  our  judgment,  "affect  the  liability  of  the  United  States  therefor." 


THOMAS  GUSHING,  Administrator,  v.  THE  UNITED  STATES^ 

[French  Spoliations  No.  132.    Decided  December  6,  1886] 

On  the  Defendants^  Motion 

The  general  question  of  the  liability  of  the  United  States  for  claims  released  to 
France  by  the  treaty  of  1800  is  decided  in  the  case  of  Gray  (21  C.  Cls. 
340).  Subsequently  during  the  term,  the  law  officers  of  the  govern- 
ment move  for  a  rehearing.  All  of  the  questions  involved  are  re- 
argued and  reconsidered. 
I.  The  French  Spoliation  Cases  can  not  be  maintained  as  subjects  of  legal 
right  founded  on  municipal  law ;  but  Gongress  with  full  knowledge 
of  the  law  and  the  facts,  directed  that  they  be  investigated  and  de- 
termined under  a  diflferent  and  broader  rule,  viz.,  "According  to 
the  rules  of  law,  municipal  and  international,  and  the  treaties  of  the 
United  States  applicable  to  the  same,"  Act  of  January  20,  1883.^  (23 
Stat.  L.  283). 

II.  The  question,  what  are  "valid  claims  to  indemnity  upon  the  French  Gov- 
ernment," is  international  and  not  within  the  scope  of  ordinary  judicial 
inquiry,  and  is  to  be  measured  by  rules  which  relate  to  the  rights  and 
obligations  of  nations. 

III.  The  purpose  of  the  French  Spoliation  Act  of  1885  is  that  the  judicial 

shall  assist  the  political  branch  of  the  Government  in  determining 
certain  rights  not  enforceable  in  courts,  but  which  are  nevertheless 
obligatory  under  international  law  and  the  Constitution. 

IV.  The  court  now  adheres  to  its  former  conclusions   (1)   that  the  French 

depredations  upon  American  commerce  were  illegal ;  (2)  tliat  the 
United  States  by  the  treaty  of  1800  set  off  these  claims  against  others 
maintained  by  France,  and  released  them  for  a  valuable  consideration 
beneficial  to  this  nation ;  (3)  that  an  appeal  from  a  prize  court  is  not 
an  indispensable  prerequisite  to  diplomatic  interference  and  amid  the 
circumstances  is  no  defense  in  this  case. 
V.  It  is  the  purpose  of  the  Spoliation  Act  that  the  court  shall  determine 
whether  each  claim  brought  before  it  is  valid  as  against  France,  and 
whether  the  United  States  became  liable  over  to  the  individual. 
VI.  Neither  original  of  the  treaty  of  1800  with  France  can  be  found;  but 
the  published  copies  differ  only  in  the  caption,  which  is  not  a  part 
of  a  treaty,  and  is  usually  the  work  of  an  editor. 


1  Court  of  Claims  Reports,  vol.  22,  page  1.  -  Supra,  p.  92. 


294  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

VII.  The  treaty  was  not  a  treaty  of  peace,  nor  did  it  conclude  or  recognize 
a  state  of  war  or  a  condition  of  hostilities.  The  decision  in  Bas  v. 
Tingy  (4  Dallas,  2>7''-),  and  the  statutes  to  which  the  decision  refers, 
examined  and  explained. 

VIII.  The  treaty  is  not  an  adjudication  of  these  claims  adverse  to  this  Govern- 
ment.   Its  own  terms  negative  that  assumption ;  so  do  the  negotiations 
which  led  to  it,  and  so  does  the  act  of  1885. 
IX.  The  reprisals  of  this  country  upon  France  were  most  limited  in  their 
nature ;  were  allowed  by  the  natural  laws  of  self-defense,  and  defined 
and  regulated  by  acts  of  Congress  which  were  defensive  in  character, 
allowing  French  merchantmen  to  pursue  their  voyages  unmolested  and 
to  refit  and  provision  in  our  ports. 
X.  The  seizure  of  an  American  merchantman  can  not  be  justified  by  the 
fact  of  her  having  been  armed  for  defensive  purposes.     During  the 
last  century  substantially  all  vessels  were  armed  against  pirates. 
XL  Condemnations  of  prize  courts  are  final  in  actions  between  individuals, 
and  as  to  the  vessels  condemned,  giving  purchasers  a  good  title  as 
against  all  the  world,  but  do  not  bind  foreign  nations  nor  bar  claims 
valid  by  international  law. 
XII.  The  rights  of  prize  courts  are  the  rights  of  the  capturing  states.    Their 
decrees  do  not  relieve  the  state  from  responsibility  nor  preclude  other 
powers  from  seeking  redress  or  investigating  the  captures  de  novo. 

XIII.  The  absence  of  a  ship's  papers  may  be  punishable  within  local  jurisdic- 
tion as  a  police  measure,  but  never  by  absolute  confiscation,  if  it  be 
shown  that  the  vessel  was  innocently  pursuing  a  legitimate  voyage. 

The  Reporters'  statement  of  the  case : 

The  cases  now  ar^ed  and  submitted  are  the  same  as  those  deter- 
mined at  the  last  term  (21  C.  Cls.  340,  430),  the  present  motion 
being  merely  a  means  for  reviewing  and  resubmitting  the  legal  ques- 
tions previously  considered.  The  cases  were  reported  to  Congress  on 
the  same  day  that  this  motion  was  decided.  The  findings  in  those  cases 
are  given  below. 

The  Schooner  Industry 

No.  132.  Thomas  Gushing,  administrator  of  Marston  Watson. 
No.  258.  Charles  F.  Adams,  administrator  of  Peter  C.  Brooks. 
No.  258.  William  Sohier,  administrator  of  Nath.  Fellowes. 
No.  1918.  H.  W.  Blagge  and  Susan  B.  Samuels,  administrators 
of  Crowell  Hatch. 

1  Supra,  p.  104. 


GUSHING  V.  UNITED  STATES  295 

FINDINGS  OF  FACT 

These  cases  having  been  tried  together  before  the  Court  of  Claims, 
William  E.  Earle,  Esq.,  appearing  for  Thomas  Cushing  and  Charles  F. 
Adams,  Edward  Lander,  Esq.,  for  William  Sohier,  and  George  S. 
Boutwell,  Esq.,  for  Blagge  and  Samuels,  claimants;  and  Benjamin 
Wilson,  Esq.,  assistant  attorney  in  the  Department  of  Justice,  with 
Robert  A.  Howard,  Assistant  Attorney-General,  for  the  defendants, 
the  court,  upon  the  evidence,  finds  the  facts  to  be  as  follows : 

I.  The  schooner  Industry,  a  duly  registered  vessel  of  the  United 
States,  of  which  Benjamin  Hawkes  was  master,  sailed  on  a  commer- 
cial voyage  from  the  port  of  Boston,  Mass.,  June  1,  1798,  bound  for 
Surinam  with  a  cargo  of  merchandise,  both  owned  by  Marston  Watson, 
a  citizen  of  the  United  States  residing  in  said  Boston,  now  deceased ; 
said  vessel  was  lawfully  pursuing  her  voyage  when  she  was  seized  and 
captured  on  the  high  seas  by  the  French  privateer  Victoire,  Captain 
Bandry,  on  the  26th  of  July,  1798,  and  was  taken  into  the  French  port 
of  Cayenne,  and  there  libeled,  condemned,  and  sold  as  a  prize. 

II.  The  sole  ground  of  condemnation  was  that  the  role  d'equipage 
which  she  had  on  board  was  "signed  only  by  one  notary  public,  with- 
out the  confirmation  of  witnesses,"  and  that  there  was  written  on  the 
back  of  said  role  an  unsigned  certificate  that  a  role  d'equipage  was  un- 
necessary. 

III.  The  value  at  the  time  of  said  seizure  was  as  follows : 

Vessel    $1,500 

Freight    2,500 

Cargo  of  merchandise 10,555 

Cost  of  insurance 4,000 

Total  value    $1 8,555 

IV.  Said  Watson  had  insurance  thereon  to  the  amount  of  $12,000, 
which  the  claimant,  Cushing,  his  duly  appointed  administrator,  admits 
was  paid  to  said  Watson,  or  that  he  is  chargeable  with  the  receipt 
thereof.  Crowell  Hatch,  William  Smith,  David  Greene,  Benjamin 
Bussey,  and  Nathaniel  Fellowes,  all  citizens  of  the  United  States,  were 
among  the  insurers,  each  for  $1,000,  through  Peter  C.  Brooks,  also  a 
citizen  of  the  United  States,  an  insurance  broker,  which  said  sums  were 
paid  to  said  Marston  Watson  on  or  before  February  20,  1799,  as  for  a 
total  loss  of  said  schooner  with  the  cargo. 


296  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

V.  Henry  W.  Blagge  and  Susan  B.  Samuels  are  the  duly  appointed 
administrators  of  said  Crowell  Hatch,  deceased,  and  William  Sohier  is 
the  duly  appointed  administrator  of  said  Nathaniel  Fellowes,  deceased, 
and  in  their  said  representative  capacity  they  are  the  present  owners  of 
the  claims  of  their  respective  intestates  above  set  out. 

VI.  Said  Smith,  on  the  15th  of  December,  1801,  in  consideration  of 
$4,000  and  the  assumption  by  said  Brooks  of  all  the  disadvantages  of 
the  said  Smith  as  an  underwriter  in  the  office  of  the  said  Brooks  and 
said  Greene,  on  the  23d  of  December,  1801,  in  consideration  of  $6,000, 
and  the  assumption  of  the  disadvantages  of  said  Greene  as  an  under- 
writer in  the  office  of  said  Brooks  and  said  Bussey,  on  the  15th  of 
February,  1805,  in  consideration  of  $10,000  and  the  assumption  by 
said  Brooks  of  the  disadvantages  of  the  said  Bussey  as  an  underwriter 
in  the  office  of  the  said  Brooks,  assigned  to  said  Brooks  all  their  re- 
spective underwriting  accounts  in  his  said  office ;  and  said  Charles  F. 
Adams,  administrator  aforesaid  in  said  representative  capacity,  is  the 
present  owner  of  said  claims  so  assigned. 

Vn.  Said  claims  were  not  embraced  in  the  convention  between  the 
United  States  and  the  Republic  of  France  concluded  on  the  30th  of 
April,  1803.  It  was  not  a  claim  growing  out  of  the  acts  of  France, 
allowed  and  paid  in  whole  or  in  part  under  the  provisions  of  the 
treaty  between  the  United  States  and  Spain,  concluded  on  the  22d  of 
February,  1819,  and  it  was  not  allowed  in  whole  or  in  part  under  the 
provisions  of  the  treaty  between  the  United  States  and  France  of  the 
4th  of  July,  1831. 

CONCLUSIONS   OF   LAW 

The  court  finds  as  conclusions  of  law  that  said  seizure  and  con- 
demnation were  illegal,  and  the  owners  and  insurers  had  valid  claims 
therefor  upon  the  French  Government  prior  to  the  ratification  of  the 
convention  between  the  United  States  and  the  French  Republic,  con- 
cluded on  the  30th  day  of  September,  1800,  and  were  entitled  to  the 
following  sums : 

Marston  Watson,  owner  of  the  vessel  and  cargo $18,555 

Less  the  amount  of  the  insurance 12,000 

Balance $6,555 

William  Smith,  David  Greene,  and  Benjamin  Bussey,  represented 
by  Charles  Francis  Adams,  administrator  of  Peter  Chardon  Brooks, 


GUSHING  V.  UNITED  STATES  297 

assignee,  Crowell  Hatch,  and  Nathaniel  Fellowes,  each  $1,000,  the 
amount  of  insurance  paid  by  them  respectively. 

That  said  claims  were  relinquished  to  France  by  the  Government 
of  the  United  States  by  said  treaty  in  part  consideration  of  the  re- 
linquishment of  certain  national  claims  of  France  against  the  United 
States. 

The  conclusions  of  law  which,  in  our  judgment,  affect  the  liability  of 
the  United  States  therefor,  are  set  forth  in  the  opinions  of  this  court, 
delivered  May  17  and  24,  and  December  6,  1886. 

The  Schooner  Delight 

No.  505.  George  Holbrook,  administrator  of  Edward  Holbrook. 

No.  249.  Charles  Francis  Adams,  administrator  of  Peter  C. 
Brooks. 

No.  249.  Ebenezer  Gay,  executor  of  the  last  will  and  testament 
of  Ebenezer  Gay,  who  was  assignee  in  bankruptcy  of  Thomas 
English. 

No.  249.  Charles  T.  Hunt,  administrator  of  Joseph  Russell, 
surviving  partner  of  Jeffrey  &  Russell. 

No.  249.  Henry  W.  Blagge  and  Susan  B.  Samuels,  administra- 
tor and  administratrix  of  Crowell  Hatch. 

No.  252.  Charles  Francis  Adams,  administrator  of  Peter  C. 
Brooks. 

FINDINGS  OF  FACT 

These  cases,  involving  a  claim  under  the  act  of  January  20,  1885, 
were  heard  by  the  Court  of  Claims.  The  claimants  were  represented 
by  William  E.  Earle,  Esq.,  Messrs.  Shellabarger  &  Wilson,  and  George 
S.  Boutwell,  Esq. ;  and  the  defendants  by  Benjamin  Wilson,  Esq.,  assist- 
ant attorney,  with  whom  was  the  Assistant  Attorney-General.  After 
hearing  the  parties,  their  proofs,  and  arguments,  the  court  from  the 
evidence  find  the  facts  to  be  as  follows: 

I.  That  the  schooner  Delight,  an  American  registered  vessel  of  78 
and  a  fraction  tons,  owned  by  Asa  Payson  and  Edward  Holbrook, 
both  of  Boston,  Mass.,  sailed  upon  a  commercial  voyage  from  Boston 
to  St.  Bartholomew's,  June  22,  1799,  laden  with  a  cargo  of  bacon,  soap, 
candles,  butter,  and  similar  goods. 

IT.  That  said  vessel  and  cargo  were  owned  by  Payson  &  Holbrook. 


298  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

with  an  adventure,  belonging  to   Stephen  Curtis,  the  captain,  all  of 
whom  were  citizens  of  the  United  States. 

III.  That  on  July  2,  1799,  the  owners  obtained  of  Peter  Chardon 
Brooks  a  policy  of  insurance  on  said  schooner  for  $1,500,  and  on  said 
cargo  for  $4,500,  whereon  the  hereinafter  named  insurers  underwrote 
as  stated. 

IV.  That  on  June  21,  1799,  Stephen  Curtis  obtained  a  policy  of  in- 
surance of  $500  on  his  adventure,  whereon  Tuthill  Hubbart  under- 
wrote $500. 

V.  That  the  schooner  Delight  and  her  cargo  was  captured  by  the 
French  privateer.  La  Courageuse,  Captain  Vendibourg,  July  19,  1799, 
and  condemned  at  Guadeloupe. 

VI.  That  the  sole  grounds  for  the  condemnation  were  that  a  part 
of  the  cargo  was  English  merchandise,  and  that  the  role  d'equipage 
was  deficient. 

VII.  That  the  cargo  contained  nothing  contraband  of  war,  under 
the  treaty  of  February  6,  1778,  and  nothing  English. 

VIII.  That  the  cargo  owned  by  Payson  &  Holbrook  was  worth 
$5,959,  and  the  insurance  paid  thereon  being  $4,500,  they  lost  on  the 
cargo  $1,459;  that  the  schooner  was  worth  $3,243,  and  the  insurance 
paid  thereon  being  $1,500,  the  loss  thereon  was  $1,743;  that  the  freight 
was  reasonably  worth  $2,500;  that  the  insurance  premium  paid  was 
$600,  making  $6,302. 

IX.  That  the  said  underwriters  named  in  Finding  No.  Ill  paid  the 
said  several  sums  for  which  they  underwrote,  amounting  to  $6,000, 
and  Tuthill  Hubbart  also  paid  the  amount  for  which  he  underwrote, 
as  found  in  Finding  No.  IV,  and  thereupon  the  insured  abandoned  to 
the  underwriters  in  writing  to  the  extent  of  the  insurance. 

X.  Crowell  Hatch,  Tuthill  Hubbart,  William  Smith,  Jeffrey  &  Rus- 
sell, Benjamin  Homer,  Thomas  English,  David  Greene,  Daniel  Deni- 
son  Rogers,  all  citizens  of  the  United  States,  were  insurers  for  the 
following  sums,  to  wit:  Said  Hatch,  Hubbart,  Smith,  and  Jeffrey  & 
Russell,  each  in  the  sum  of  $1,000,  said  Homer,  English,  Greene,  and 
Rogers,  each  in  the  sum  of  $500,  through  Peter  Chardon  Brooks,  also 
a  citizen  of  the  United  States  and  an  insurance  broker,  which  said 
sums  were  paid  to  the  said  Payson  &  Holbrook  before  January  25, 
1800,  as  and  for  a  total  loss  of  said  schooner  and  cargo. 

XI.  Tuthill  Hubbart,  a  citizen  of  the  United  States,  was  an  insurer 
in  the  sum  of  $500,  through  Peter  Chardon  Brooks,  a  citizen  of  the 


GUSHING  V.  UNITED  STATES  299 

United  States  and  an  insurance  broker,  which  said  sum  was  paid  to 
Stephen  Curtis  before  January  25,  1800,  as  and  for  a  total  loss 
of  his  adventure  on  board  of  said  schooner. 

XII.  Henry  W.  Blagge  and  Susan  B.  Samuels  are  the  duly  appointed 
administrators  of  Crowell  Hatch,  deceased,  and  Charles  F.  Hunt  is  the 
administrator,  cum  testamento  annexo,  of  Joseph  Russell,  deceased, 
surviving-  partner  of  Jeffrey  &  Russell ;  and  Ebenezer  Gay  is  the 
executor  of  the  last  will  and  testament  of  Ebenezer  Gay,  assignee  in 
bankruptcy  of  Thomas  English,  deceased ;  and  in  their  representative 
capacities  they  are  the  present  owners  of  the  claims  of  their  respective 
decedents  herein  set  forth. 

XIII.  That  said  Smith,  on  the  16th  of  December,  1801,  in  consid- 
eration of  $4,000  and  of  the  assumption  of  the  liabilities  of  the  said 
Smith  as  an  underwriter  in  the  office  of  Peter  Chardon  Brooks ;  and 
said  Greene,  on  the  23d  day  of  December,  1801,  in  consideration  of 
$6,000  and  the  assumption  of  the  liabilities  of  the  said  Greene  in  the 
office  of  said  Brooks  as  an  underwriter;  and  said  Rogers,  on  the  19th 
of  October,  1804,  in  consideration  of  $3,400  and  the  assumption  of  the 
liabilities  of  the  said  Rogers  as  an  underwriter  in  the  office  of  the 
said  Brooks ;  and  the  said  Homer,  on  the  23d  of  July,  1805,  in  con- 
sideration of  $5,000  and  the  assumption  of  the  liabilities  of  the  said 
Homer  in  the  office  of  the  said  Brooks  as  an  underwriter ;  and  the 
said  Hubbart,  on  the  4th  of  April,  1808,  in  consideration  of  $60,000 
and  of  the  assumption  of  the  liabilities  of  the  said  Hubbart  in  the 
office  of  the  said  Brooks  as  an  underwriter,  assigned  to  the  said  Brooks 
all  their  respective  underwriting  accounts  in  his  said  office. 

XIV.  That  said  claims  were  not  embraced  in  the  convention  between 
the  United  States  and  the  Republic  of  France,  concluded  on  the  30th 
of  April,  1803 ;  that  they  were  not  claims  growing  out  of  the  acts  of 
France  allowed  and  paid  in  whole  or  in  part  under  the  provisions  of 
the  treaty  between  the  United  States  and  Spain,  concluded  on  the  22d 
day  of  February,  1819;  and  they  were  not  allowed  in  whole  or  in  part 
under  the  provisions  of  the  treaty  between  the  United  States  and 
France  of  the  4th  of  July,  1831. 

CONCLUSIONS   OF   LAW 

The  court  finds  as  conclusions  of  law  that  said  seizure  and  con- 
demnation were  illegal,  and  the  owners  and  insurers  had  valid  claims 
therefor  upon  the  French  Government  prior  to  the  ratification  of  the 


300  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

convention  between  the  United  States  and  the  French  Republic,  con- 
cluded the  30th  day  of  September,  1800,  and  were  entitled  to  the  fol- 
lowing sums  to  wit : 

Payson  &  Holbrook,  owners  of  vessel  and  cargo,  after  deducting 
insurance,  $6,302. 

Benjamin  Homer,  Daniel  Denison  Rogers,  and  David  Greene,  repre- 
sented by  Charles  Francis  Adams,  Jr.,  administrator  of  Peter  Chardon 
Brooks,  each  $500. 

Crowell  Hatch,  represented  by  Henry  W.  Blagge  and  Susan  B. 
Samuels,  $1,000. 

Jeffrey  &  Russell,  represented  by  Charles  F.  Hunt,  $1,000. 

Thomas  English,  represented  by  Ebenezer  Gay,  $500. 

Tuthill  Hubbart  and  William  Smith,  represented  by  Charles  Francis 
Adams,  Jr.,  administrator  of  Peter  Chardon  Brooks,  $1,000  each. 

Tuthill  Hubbart,  in  case  No.  252,  represented  by  Charles  Francis 
Adams,  Jr.,  administrator  of  Peter  Chardon  Brooks,  $500,  the  same 
being  the  amounts  of  insurance  paid  by  them  respectively. 

That  said  claims  were  relinquished  to  France  by  the  Government 
of  the  United  States  by  said  treaty  in  part  consideration  of  the  relin- 
quishment of  certain  national  claims  of  France  against  the  United 
States. 

The  conclusions  of  law  which  in  our  judgment  affect  the  liability 
of  the  United  States  therefor  are  set  forth  in  the  opinions  of  this 
court  delivered  May  17  and  24  and  December  6,  1886. 

The  Schooner  Little  Pegg 
No.  155.  Francis  King  Carey,  administrator  of  Samuel  Hollingsworth. 

FINDINGS  OF  FACT 

This  case  was  heard  before  the  Court  of  Claims  May,  1886. 

The  claimant  was  represented  by  William  E.  Earle,  Esq.,  and  John 
&  David  Stewart,  Esqrs.,  and  the  defendants  by  Benjamin  W^ilson 
Esq.,  assistant  attorney.  After  hearing  the  parties,  their  proofs  and 
arguments,  the  court  from  the  evidence  finds  the  facts  to  be  as  follows : 

L  In  1798,  Thomas  and  Samuel  Hollingsworth,  of  whom  Samuel 
was  the  survivor,  citizens  of  Baltimore  and  of  the  United  States,  were 
the  owners  of  the  schooner  Little  Pegg,  a  duly  registered  vessel  of  the 
United  States. 


GUSHING  V.  UNITED  STATES  301 

II.  In  the  same  year  said  vessel  sailed  upon  a  lawful  voyage  from 
Baltimore,  Md.,  to  Kingston,  Jamaica,  under  the  command  of  William 
Auld,  master,  laden  with  a  cargo  of  flour,  crackers,  peas,  and  shingles, 
all  belonging  to  said  owners.  September  28,  1798,  the  vessel  was  cap- 
tured by  a  French  privateer,  called  Le  Macanda,  commanded  by  Lewis 
Duprat,  and  carried  into  Port  au  Paix.  Said  vessel  and  her  cargo 
were  subsequently  condemned,  to  wit,  October  3,  1799,  as  prize,  at 
Cape  Frangois,  by  the  French  prize  tribunal. 

III.  William  Auld,  the  said  master,  was  born  in  Scotland,  but  was 
naturalized  as  a  citizen  of  the  United  States  August  22,  1798,  and  had 
been  a  resident  of  Baltimore  since  January,  1795.  The  condemnation 
of  the  vessel  and  cargo  was  made  on  the  ground  that  the  master  was 
a  native  of  Scotland,  with  which  country  France  was  at  war. 

IV.  At  the  time  of  the  capture  said  vessel  was  worth  $2,000,  the 
cargo  $2,760.50,  and  the  freight  $1,200,  making  in  all  $5,960.50.  The 
claim  has  never  been  assigned.  The  claimant  is  the  duly  appointed 
administrator  de  bonis  non  of  the  estate  of  Samuel  Hollingsworth,  de- 
ceased, by  the  orphans'  court  of  Baltimore. 

V.  This  claim  was  not  embraced  in  the  convention  between  the 
United  States  and  the  Republic  of  France  concluded  on  the  13th  day 
of  April,  1803 ;  that  it  was  not  a  claim  growing  out  of  the  acts  of 
France,  allowed  and  paid,  in  whole  or  in  part,  under  the  provisions 
of  the  treaty  between  the  United  States  and  Spain,  concluded  on  the 
22d  day  of  February,  1819 ;  and  that  it  was  not  allowed,  in  whole 
or  in  part,  under  the  provisions  of  the  treaty  between  the  United 
States  and  France,  concluded  on  the  4th  day  of  July,  1831. 

CONCLUSIONS   OF   LAW 

The  court  finds  as  conclusion  of  law  that  Samuel  Hollingsworth  has 
a  valid  claim  to  indemnity  upon  the  French  Government  prior  to  the 
ratification  of  the  convention  between  the  United  States  and  the  French 
Republic,  concluded  on  the  30th  day  of  September,  1800,  and  was  en- 
titled to  the  sum  of  $5,960.50,  and  that  the  claim  was  relinquished  to 
France  by  the  Government  of  the  United  States  by  said  treaty  in  part 
consideration  of  the  relinquishment  of  certain  national  claims  of 
France  against  the  United  States. 

The  conclusions  of  law  which  in  our  judgment  affect  the  liability 
of  the  United  States  therefor  are  set  forth  in  the  opinion  of  this  court 
delivered  the  17th  and  24th  of  May  and  the  6th  of  December,  1886. 


302  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  Ship  Theresa 

No.  142.  R.  Stewart  Strobel  and  Henry  L.  Bruns,  administrators  of 
Thomas  Stewart. 

FINDINGS  OF  FACT 

This  case,  involving  a  claim  under  the  act  of  January  20,  1885,  was 
heard  before  the  Court  of  Claims  in  May,  1886.  The  claimant  was 
represented  by  WilHam  E.  Earle,  Esq.,  and  the  defendants  by  Hon. 
Benjamin  Wilson,  assistant  attorney.  After  hearing  the  parties,  their 
proofs  and  arguments,  the  court  from  the  evidence  finds  the  facts  to 
be  as  follows : 

I.  In  1797  Thomas  Stewart,  a  citizen  of  Charleston,  S.  C,  was  the 
owner  of  the  ship  Theresa.  The  Theresa  was  duly  registered  as  a 
vessel  of  the  United  States.  In  the  same  year,  under  the  command  of 
James  Brown,  the  master,  she  sailed,  in  ballast,  upon  a  lawful  voyage 
from  London  to  Nantes,  where  she  was  to  take  in  a  cargo  of  salt.  She 
bore  a  letter  from  Mr.  King,  the  United  States  minister  to  Great 
Britain,  to  P.  F.  Dorbee,  vice-consul  of  the  United  States  at  Nantes. 
Arriving  at  Nantes  she  was  seized  by  the  French  marine  officers,  and, 
on  April  25,  1798,  condemned  by  the  tribunal  of  commerce,  whereby 
she  became  lost  to  the  owner. 

II.  The  Theresa  was  condemned  "upon  the  plea  of  the  want  of  a 
muster-roll  or  role  d' equipage."  The  legality  of  condemnation  for  this 
cause,  the  liability  of  France  to  make  restitution,  and  the  transfer  of 
such  liability  to  the  United  States  by  the  operation  of  the  treaty  of 
1800,  were  considered  by  the  court  and  ruled  upon  adversely  to  the 
defendants  in  the  case  of  William  Gray,  Administrator,  v.  The  United 
States,  No.  7  of  these  claims. 

III.  The  value  of  the  Theresa  was  $6,350.  The  claim  has  never 
been  assigned,  nor  is  it  embraced  in  the  convention  between  the  United 
States  and  the  French  Republic  concluded  on  the  30th  day  of  April, 
1803 ;  nor  to  such  claims  growing  out  of  the  acts  of  France  as  were 
allowed  and  paid,  in  whole  or  in  part,  under  the  provisions  of  the  treaty 
between  the  United  States  and  Spain,  concluded  on  the  22d  day  of 
February,  1819;  nor  to  such  claims  as  were  allowed,  in  whole  or  in 
part,  under  the  provisions  of  the  treaty  between  the  United  States  and 
France  concluded  on  the  4th  day  of  July,  1831. 


GUSHING  V.  UNITED  STATES  303 

IV.  The  claimants  were  duly  appointed  administrators  de  bonis  non 
of  the  estate  of  Thomas  Stewart,  deceased,  by  the  probate  court  of 
Charleston  County,  S.  C. 

CONCLUSIONS   OF   LAW 

The  court  finds  as  conclusion  of  law  that  the  said  Thomas  Stewart 
had  a  valid  claim  to  indemnity  upon  the  French  Government  prior  to 
the  ratification  of  the  convention  between  the  United  States  and  the 
French  Republic,  concluded  on  the  30th  day  of  September,  1800,  and 
was  entitled  to  the  following  sum  of  $6,350,  and  that  the  claim  was  re- 
hnquished  to  France  by  the  Government  of  the  United  States  by  said 
treaty  in  part  consideration  of  the  relinquishment  of  certain  national 
claims  of  France  against  the  United  States. 

The  conclusions  of  law  which  in  our  judgment  affect  the  liability 
of  the  United  States  therefor  are  set  forth  in  the  opinions  of  this  court 
delivered  the  17th  and  24th  of  May  and  the  6th  of  December,  1886. 

The  questions  submitted  by  the  counsel  for  the  defendants  on  the 
present  motion  were  the  following: 

1.  Whether  the  ship's  paper  called  a  role  d' equipage,  or  muster  roll, 
or  crew  list,  was  properly  exacted  of  the  original  claimants  by  the 
French  admiralty  courts. 

2.  Whether  the  original  claimants  were  excused  from  an  exhaustion 
of  their  remedies  against  the  privateer  owners  in  France. 

3.  The  question  of  the  conclusiveness  against  the  original  claimants 
of  the  admiralty  condemnations  in  France. 

4.  Whether  there  was  war  between  France  and  the  United  States 
at  the  time  these  claims  arose,  and  how  that  fact  affected  their  validity. 

5.  Whether  the  French  Government  ever  admitted  the  validity  of 
the  present  claims. 

6.  Whether  this  Government  bargained  away  and  appropriated  the 
present  claims  while  pending  against  France. 

Mr.  Solicitor-General  Jenks,  for  the  defendants,  requested  the  court 
to  find  the  following  conclusions  of  law : 

1.  That  the  act  of  the  20th  of  January,  1885,  submits  to  this  court 
two  questions  for  its  consideration  and  report:  (a)  The  validity  of  the 
claims  presented  as  against  France.  (6)  Such  facts  and  conclusions 
of  law  as  may  affect  the  liability  of  the  United  States  therefor.  (23 
Stat.  L.  283,  §  1,  3.) 


304  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

2.  That  the  court,  in  its  report  and  conclusions  of  law,  is  required 
to  conform  to  the  rules  of  law,  municipal  and  international,  and  the 
treaties  of  the  United  States  applicable  to  the  case.  (23  Stat.  L. 
283,  §  3.) 

3.  That  the  acts  of  Congress  of  the  United  States,  unrepealed,  within 
the  limits  of  the  Constitution,  are  conclusively  obligatory  upon  this 
court  as  law  in  this  case. 

4.  That  this  court  is  not  empowered  under  the  law  to  go  behind  an 
act  of  Congress,  unrepealed,  to  inquire  into  the  motives,  reasons,  or 
facts  which  induced  the  passage  of  the  act,  and  pass  upon  the  verity 
or  sufficiency  of  the  facts,  motives,  or  reasons  which  occasioned  the 
legislative  power  to  pass  it,  or  decide,  because  it  may  differ  with  the 
legislative  power  as  to  the  verity  of  the  facts  and  the  sufficiency  of  the 
reasons,  therefore  the  act  regularly  passed,  approved,  unrepealed,  and 
within  the  limits  of  the  Constitution,  is  not  law.  (Osborne  v.  U.  S.,  7 
Wheaton,  866 ;  Fisher  v.  Blight,  2  Cranch,  390 ;  U.  S.  v.  Wiltberger, 
5  Wheaton,  95,  105.) 

5.  It  is  a  prerogative  of  sovereignty  to  judge  and  determine  con- 
clusively whether  war  is  justifiable ;  and  when  a  sovereign  so  deter- 
mines it  is  conclusive  on  the  whole  world.  (Story  on  the  Constitution, 
§  207.) 

6.  France,  at  the  time  of  the  seizure  of  the  property  for  which 
claim  is  made,  was  a  sovereign  nation,  and,  as  such,  had  a  right  to 
determine  conclusively  as  to  the  United  States  whether  her  status 
should  be  that  of  peace  or  war;  and  if  the  latter,  whether  it  should 
be  general  or  limited ;  and,  in  either  event,  the  principles  of  international 
law  applicable  to  the  status  she  selected  are  those  which  should  control 
in  determining  her  liability  for  the  property  for  which  claim  is  made. 
(The  Charming  Betsy,  2  Cranch,  118;  1  id.  28-39;  3  Wheaton,  315.) 

7.  That  the  deliberate  act  of  France  by  which  she  authorized  the 
seizure  by  force,  the  condemnation,  and  confiscation  of  the  merchant- 
men and  armed  vessels  of  the  United  States,  under  which  the  property 
claimed  in  this  case  was  seized,  was  the  actual  assertion  and  exercise 
of  a  belligerent  power,  and,  as  such,  constituted  a  maritime  war  on  her 
part  against  the  United  States.  (Bas  v.  Tingy,  4  Dall.  39,  40,  41 ; 
Dana's"  Wheaton,  §291.) 

8.  That  the  right  to  redress  by  the  United  States  or  her  citizens  for 
the  seizure  of  the  property  claimed  should  be  determined  by  the  prin- 
ciples of  international  law,  as  applicable  to  a  nation  engaged  in  a  mari- 
time war.      (Talbot  v.  Seeman,  1   Cranch,  28.) 


GUSHING  V.  UNITED  STATES  305 

9.  That  during  the  existence  of  a  maritime  war,  if  a  vessel  and 
cargo  of  a  citizen  be  seized  by  one  of  the  belligerents,  and  be  not  re- 
captured by  one  of  his  own  nation,  his  title  is  gone;  and,  unless  by 
the  treaty  which  terminates  the  war  the  rights  are  reserved,  or  indem- 
nity is  provided  for  or  received  for  the  seizure,  he  has  no  valid  claim 
for  his  loss.  (Vattel's  Lai^  of  Nations,  385,  386;  2  Blackstone,  400; 
8  Cranch,  145.) 

10.  The  determination  as  to  whether  war  is  justifiable  and  exists 
belongs,  under  the  United  States  Government,  to  the  political  de- 
partments of  the  Government,  and  their  determination  is  conclusive 
as  law  on  the  judiciary.  (2  Black,  670;  12  Wall.  702;  15  id.  560, 
561.) 

11.  If  the  political  departments  of  the  Government  enact  such  laws, 
make  such  proclamations,  as  authorize  the  forcible  capture  of  the 
property  of  another  nation  on  the  high  seas,  make  conquests,  and  con- 
demn the  property  captured  as  booty,  it  is  a  political  determination  of 
the  existence  of  war.  (Prize  Cases,  2  Black,  670;  12  Wall.  702;  15 
id.  560.) 

12.  The  act  of  Congress  of  the  9th  of  July,  1798,  and  other  similar 
acts,  at  and  about  the  same  time,  in  pursuance  thereof,  followed  by  the 
capture  and  condemnation  of  the  property  of  the  French,  and  other 
warlike  acts  of  retaliation  by  force,  is  a  conclusive  determination  by 
the  political  departments  of  the  Government  that  war  existed  by  the 
United  States  against  France.  (Bas.  v.  Tingy,  4  Dall.  42,  43,  44,  46; 
1  Cranch,  28,  31.) 

The  syllabus  in  Bas  v.  Tingy  is  as  follows : 

Under  the  seventh  section  of  the  Act  of  March  2,  1799  (1 
Stat.  L.  716),  France  was  to  be  deemed  an  enemy  of  the  United 
States  in  March,  1799,  and  a  French  privateer  having  captured 
an  American  vessel,  a  public  armed  vessel  of  the  United  States 
was  entitled  to  salvage  or  recapture. 

The  opinion  declares  as  follows : 

The  decision  of  this  question  must  depend  upon  another,  which 
is  whether,  at  the  time  of  passing  the  act  of  Congress  of  the  2d 
of  March,  1799.  there  subsisted  a  state  of  war  between  the  two 
nations.  It  may,  I  believe,  be  safely  laid  down  that  ever}^  con- 
tention by  force  between  two  nations,  in  external  matters,  under 
the  authority  of  their  respective  Governments,  is  not  only  war,  but 
public  war.    Tf  it  be  declared  in  form,  it  is  called  solemn,  and  is  of 


306  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

the  perfect  kind ;  because  one  whole  nation  is  at  war  with  another 
whole  nation,  and  all  the  members  of  the  nation  declaring  war 
are  authorized  to  commit  hostilities  against  all  the  members  of 
the  other  in  every  place  and  under  every  circumstance.  In  such 
a  war  all  the  members  act  under  a  general  authority,  and  all  the 
rights  and  consequences  attach  to  their  condition. 

But  hostilities  may  subsist  between  two  nations,  more  confined 
in  its  nature  and  extent,  being  limited  as  to  places,  persons,  and 
things,  and  this  is  more  properly  termed  imperfect  war,  because 
not  solemn,  and  because  those  who  are  authorized  to  commit  hos- 
tilities act  under  special  authority  and  can  go  no  farther  than  to 
the  extent  of  their  commission.  Still,  however,  it  is  public  war, 
because  it  is  an  external  contention  by  force  between  some  of  the 
members  of  the  two  nations,  authorized  by  the  legitimate  powers. 
It  is  a  war  between  the  two  nations,  though  all  the  members  are 
not  authorized  to  commit  hostilities  such  as  in  a  solemn  war  where 
the  Government  restrain  the  general  power. 

Now,  if  this  be  the  true  definition  of  war,  let  us  see  what  was 
the  situation  of  the  United  States  in  relation  to  France.  In  March, 
1799,  Congress  had  raised  an  army,  stopped  all  intercourse  with 
France,  dissolved  our  treaty,  built  and  equipped  ships  of  war  and 
commissioned  private  armed  ships ;  enjoining  the  former  and 
authorizing  the  latter  to  defend  themselves  against  the  armed  ships 
of  France ;  to  attack  them  on  the  high  seas,  to  subdue  and  take 
them  as  prize,  and  to  recapture  armed  vessels  found  in  their  pos- 
session. 

What,  then,  is  the  evidence  of  legislative  will?  In  fact  and  in 
law  we  are  at  war.  An  American  vessel  fighting  with  a  French 
vessel  to  subdue  and  make  her  prize  is  fighting  with  an  enemy,  ac- 
curately and  technically  speaking;  and  if  this  be  not  sufficient  evi- 
dence of  the  legislative  mind,  it  is  explained  in  the  same  law.  The 
sixth  and  the  ninth  sections  of  the  act  speak  of  prizes,  which  can 
only  be  of  property  taken  at  sea  from  an  enemy,  jure  belli;  and 
the  ninth  section  speaks  of  prizes  taken  from  an  enemy,  in  so 
many  words,  alluding  to  prizes  which  had  been  previously  taken. 
But  no  prize  could  have  been  then  taken  except  from  France ; 
prizes  taken  from  France  were,  therefore,  taken  from  the  enemy. 
This,  then,  is  a  legislative  interpretation  of  the  word  enemy ;  and 
if  the  enemy  as  to  prizes,  surely  they  preserve  the  same  character 
as  to  recaptures.  Besides,  it  may  be  fairly  asked.  Why  should  the 
rate  of  salvage  be  different  in  such  a  war  as  the  present  from  the 
salvage  in  a  war  more  solemn  and  general.  And  it  must  be  recol- 
lected that  the  occasion  of  making  the  law  of  March,  1799.  was 
not  only  to  raise  the  salvage,  but  to  apportion  it  to  the  hazard  in 
which  the  property  retaken  was  placed,  a  circumstance  for  which 
the  former  salvage  law  had  not  provided. 


GUSHING  V.  UNITED  STATES  307 

The  two  laws,  on  the  whole,  can  not  be  rendered  consistent  un- 
less the  court  could  wink  so  hard  as  not  to  see  and  know,  that  in 
fact  in  the  view  of  Congress,  and  to  every  intent  and  purpose,  the 
possession  by  a  French  armed  vessel  of  an  American  vessel  was 
the  possession  of  an  enemy,  and,  therefore,  in  my  opinion,  the 
decree  of  the  Circuit  Court  ought  to  be  affirmed. 

But  by  the  acts  of  Congress  an  American  vessel  is  authorized: 
1st.  To  resist  the  search  of  a  French  public  vessel ;  2d.  To  capture 
any  vessel  that  should  attempt  by  force  to  compel  submission  to  a 
search ;  3d.  To  recapture  any  American  vessel  seized  by  a  French 
vessel;  and  4th.  To  capture  any  French  armed  vessel  wherever 
found  on  the  high  seas. 

An  imperfect  war,  or  a  war  as  to  certain  objects  and  to  a  certain 
extent,  exists  between  the  two  nations ;  and  this  modified  war- 
fare is  authorized  by  the  constitutional  authority  of  our  country. 
It  is  war  quoad  hoc.  As  far  as  Congress  tolerated  and  authorized 
the  war  on  our  part,  so  far  may  we  proceed  in  hostile  operations. 
It  is  a  maritime  war,  a  war  at  sea  as  to  certain  purposes.  The 
national  armed  vessels  of  France  attack  and  capture  the  national 
armed  vessels  of  the  United  States ;  and  the  national  armed  ves- 
sels are  expressly  authorized  and  directed  to  attack,  subdue,  and 
take  the  national  armed  vessels  of  France,  and  also  to  recapture 
American  vessels. 

Now,  is  that  the  truth  or  is  it  false?  Is  that  law  to  this  court  or  is 
it  not  law;  and  was  not  that  a  capture  exactly  like  this  of  the  Sally f 
But  if  it  were  a  war  and  the  laws  of  war  apply,  there  was  no  title, 
no  right  of  recovery  whatever  left  in  the  owner  of  the  Sally  twenty- 
four  hours  after  she  was  taken  under  general  international  law.  Under 
our  statute  there  was  none  at  all,  unless  on  recapture.  The  same  view 
is  expressed  in  another  form  by  each  and  every  justice  in  that  cause. 
Now,  if  you  will  take  that  case  and  make  any  possible  distinction  be- 
tween the  case  of  Bas  v.  Tingy  and  this  case  at  bar,  it  is  more  than  I  am 
capable  of  making  on  principle,  because  you  will  have  to  find  it  was 
captured  just  as  the  Sally  was. 

13.  The  United  States  having  elected  to  redress  the  wrongs  France 
had  done  her  and  her  citizens  by  retaliation — a  warlike  measure — and 
having  actually  obtained  redress  in  that  way,  can  not  afterwards,  in 
the  absence  of  treaty  stipulations,  deny  the  justice  of  the  judgment  in 
this  last  and  highest  tribunal  of  nations,  nor  claim  another  remedy  and 
payment  for  the  same  wrong.  (Treaty  of  1800,  Rev.  Stat.,  §  225 ; 
Vattel,  437,  438.) 


308  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

14.  The  claim  in  this  case,  if  any  existed,  having  then  been  re- 
dressed by  the  war  measures  of  retaHation  as  against  France,  is  barred 
by  the  redress  received  in  the  judgment  of  that  court  of  last  resort. 

15.  When  a  sovereign  appeals  to  the  judgment  of  the  tribunal  of 
war,  that  appeal  is  final  and  conclusive  as  to  the  parties  in  the  con- 
troversy and  all  their  citizens  as  to  the  subject-matter  of  the  dispute, 
and  is  conclusively  presumed  to  be  fully  executed  in  the  treaty  by 
which  the  appeal  is  terminated. 

16.  That  by  the  treaty  of  1800  as  ratified,  no  rights  of  the  citizen 
were  reserved,  nor  any  indemnity  provided  for  or  received ;  but  both 
the  United  States  and  France  expressly  renounced  their  respective  pre- 
tensions to  indemnity  for  past  alleged  wrongs  committed  by  either. 
(Rev.  Stat.,  §  232.) 

17.  That  the  very  cause  of  the  warlike  measures  determined  upon 
by  the  United  States  as  against  France,  which  was  terminated  by  the 
treaty  of  1800,  was  the  capture,  condemnation,  and  destruction  by  the 
French  of  American  vessels  and  cargoes,  in  which  was  included  the 
property  claimed  by  the  petitioner  in  this  case.  (Rawle  on  the  Con- 
stitution, 109.) 

18.  That  under  the  law  and  facts  of  this  case,  the  claimant  had  no 
right,  at,  immediately  before,  or  after  the  treaty  of  1800  to  indemnity 
for  his  claim  against  France. 

19.  A  nation,  by  the  compact  of  Government,  does  not  insure  against 
nor  agree  to  indemnify  its  citizens  for  all  wrongs  done  them,  either 
individual  or  national.    (Vattel,  402,  403.) 

20.  The  fact  that  the  United  States  did  not  require  an  indemnity 
of  France  for  the  spoliations  committed  on  the  commerce  of  her  citi- 
zens does  not  impose  on  the  United  States  the  legal  duty  of  paying 
all  or  any  claims  for  which  she  as  a  sovereign  did  not  see  fit  to  demand 
indemnity. 

21.  That  the  judgment  of  the  political  departments  of  the  Govern- 
ment in  making  and  ratifying  the  treaty  of  1800  being  a  political  act, 
and  within  the  jurisdiction  of  the  political  departments,  is,  as  law, 
conclusive  on  this  court ;  and  this  court  is  not  empowered  to  reopen 
the  justice  or  expedience  of  the  treaty,  nor  to  rejudge  it  on  any  grounds. 
{IVilliams  v.  Suffolk  Insurance  Co.,  13  Pet.  420;  Phillips  v.  Payne, 
92  U.  S.  132.    The  Amiable  Isabella,  6  Wheat.  72.) 

22.  That  by  the  act  of  Congress  of  the  7th  of  July,  1798  (1  Stat.  L., 
p.  578),  the  treaty  of  1778  between  the  United  States  and  France  was 


GUSHING  V.  UNITED  STATES  309 

annulled,  and  France,  after  the  passage  of  the  act,  had  no  lawful  claim 
against  the  United  States  for  or  on  account  of  that  treaty,  or  for  or  on 
account  of  any  breach  or  infringement  thereof.  (1  Stat.  L.  538;  Rawle 
on  the  Constitution,  109;  Chirac  v.  Chirac,  2  Wheat.  272;  The  Charm- 
ing Betsy,  2  Cranch,  118.) 

23.  That  under  the  law  and  treaties  in  this  case  no  claim  of  France 
against  the  United  States  for  any  breach  or  infraction  of  the  treaty  of 
1778  was  paid  by  set-off,  defalcation,  or  compromise  of  any  rights,  if 
such  existed,  which  this  claimant  had  against  France  for  spoHation. 

24.  That  at  the  time  negotiations  for  the  treaty  of  1800  were  had 
between  the  United  States  and  France,  no  treaty  existed  between  them, 
nor  any  treaty  obligation. 

25.  The  United  States,  by  the  treaty  of  1800,  did  not  receive,  re- 
serve, nor  stipulate  for  any  additional  redress  for  the  alleged  wrong 
claimed  in  the  case  of  the  petitioner ;  but,  upon  its  ratification,  ex- 
pressly renounced  its  pretensions  of  claim  therefor.  (Rev.  Stat.,  43d 
Cong.,  Post  Roads  and  Treaties,  p.  232.) 

26.  That  the  claimant  in  this  case  has  no  legal  claim  or  right  against 
the  United  States. 

Mr.  B.  Wilson,  for  the  defendants,  proposed  the  following  additional 
requests : 

1.  That  international  law  concerning  neutral  commerce  required, 
as  proofs  of  the  neutrality  of  a  vessel,  the  same  proofs  which  are  men- 
tioned in  the  treaty  of  1778,  which  are,  1st,  the  certificate  of  the  several 
particulars  of  the  cargo  (Ordinance  of  1681  ;  Chitty's  Com.  Law,  487; 
DeMartens'  Armateurs,   §  21)  ;  2d,  a  passport    (Chitty's  Com.   Law, 

487)  ;  Ordinance  of  1681  ;  3  Phillimore  Int.  Law,  734,  cases  there  cited)  ; 
3d,  the  certificate  of  the  ownership  of  the  vessel  (regulation  of  the 
Hanseatic  League,  1369)  ;  4th,  the  report  or  proces-verbal  of  the  cap- 
tain of  what  was  done  during  the  voyage  (Boucher  Droits  Maritimes, 
§§  368,  498;  Emerigon,  sec.  torn.  1,  fol.  276)  ;  5th,  the  carrying  of  the 
flag  of  the  country  to  which  the  vessel  belongs  (1  Rob.  Adm.  Rep.  1, 
19,  161)  ;  6th,  the  role  d' equipage  (Reglements  of  1704,  1774,  1778; 
Chitty's  Com.  Law,  487 ;  Valin,  Traite  des  Prises,  etc.). 

2.  That  the  treaty  of  1778,  so  far  as  the  proofs  of  neutrality  or  in- 
nocence were  concerned,  was  therefore  declaratory  of  international  law 
already  existing  and  to  be  interpreted  accordingly. 

3.  That  the  treaty  required  a  role  d'equipage,  or  list  of  the  crew, 


310  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

giving  the  names  and  places  of  birth  of  the  crew  and  of  all  who  should 
embark  on  board,  duly  authenticated  by  the  officers  of  the  Government. 

4.  That  the  object  of  such  a  hst,  not  being  stated  in  the  treaty,  is  to 
be  sought  for  in  international  law,  and  is  there  declared  to  be  to 
prove  the  neutrality  of  the  crew.  (DeMartens'  Armateurs,  §  21 ;  Chit- 
ty's  Com.  Law,  487.) 

5.  That  the  Government  of  the  United  States  having  failed  and 
refused  to  live  up  to  the  offensive  and  defensive  alliance  (treaty  of 
1778)  existing  between  it  and  France,  and  proclaimed  itself  neutral, 
it  was  competent  for  the  French  Government  to  recognize  us  as  neu- 
trals, and  thereafter  legal  for  the  French  courts  to  treat  our  vessels  as 
those  of  neutrals  were  to  be  treated  under  international  law,  and  no 
longer  as  those  of  allies,  disregarding  anything  in  the  treaties  arising 
out  of  the  favored  position  of  allies. 

6.  That  when  the  vessel  of  a  belligerent  captured  any  suspected  ves- 
sel, the  question  of  prize  belongs  exclusively  to  the  jurisdiction  of  the 
courts  of  the  captor's  country.  (9  Cranch,  359 ;  1  Wheat.  238 ;  2 
GalHson,  29.) 

7.  That  where  there  is  probable  cause  of  capture,  i.  e.,  circum- 
stances to  warrant  a  reasonable  suspicion  of  illegal  conduct,  the  cap- 
tors are  justified  and  exonerated  from  all  losses  and  damages  sus- 
tained by  reason  of  the  capture,  and  the  burden  of  proof  is  on  the 
captured.  (The  Rover,  2  Gallison,  240;  Maissonnaire  v.  Keating,  2 
Gallison,  336;  The  George,  1  Mason,  24;  Shattuck  v.  Maley,  1  Wash. 
C.  C.  248.) 

8.  In  the  prize  court  the  onus  probandi  rests  on  the  captured.  (The 
Amiable  Isabella,  6  Wheat.  77 ;  3  Phillimore  Int.  Law.  723 ;  8  Cranch, 
155.) 

9.  That  as  the  neutrality  or  innocence  of  the  property  of  the  claim- 
ant was  not  proven  beyond  a  reasonable  doubt,  it  was  rightly  con- 
demned.    (Id.) 

10.  That  municipal  laws  to  enforce  a  nation's  rights  under  interna- 
tional law  are  facts  of  the  relations  of  two  nations,  and  acts  per- 
formed by  a  nation,  of  which  the  prize  court  takes  notice  in  order  to 
enforce  international  law  as  applicable  thereto ;  that  this  was  done 
in  the  cases  of  the  present  claimants,  and  the  condemnation  of  this 
property  was  not  rendered  illegal  by  such  procedure. 

11.  That  claimants  had  no  valid  claim  against  France,  for  the  reason, 
among  others,  that  thev  did  not  exhaust  their  remedies  in  the  French 


GUSHING  V.  UNITED  STATES  311 

courts  by  appeal  or  action  upon  the  bond  and  against  the  property  of 
the  captor. 

12.  That  not  to  appeal  from  the  decision  of  the  inferior  court  con- 
demning the  claimant's  vessel  was  an  acknowledgment  of  the  justice 
of  the  sentence  and  conclusive.     (Lee  on  Captures,  220.) 

13.  It  is  universally  admitted  that  the  decree  of  a  prize  court  is  con- 
clusive against  all  the  world  as  to  all  matters  decided  and  within  its 
jurisdiction.  (17  Otto,  p.  80,  authorities  there  cited;  note,  Gushing  v. 
Laird.    See  also  Article  5,  French  and  United  States  Treaty,  1803.) 

14.  That  it  is  contrary  to  public  policy  to  ask  a  nation  to  reprobate 
the  long-continued  conduct  of  its  political  department.  (Ellsworth, 
Ch.  J.,  quoted  below;  also  Vattel,  bk.  2,  ch.  7,  §  85.) 

15.  That  the  capture  of  claimant's  property  was  an  act  of  war,  and 
as  such  gave  rise  to  no  valid  claim  for  indemnity.  (Vattel,  bk.  3, 
ch.  13,  §  190;  1  Rob.  Adm.  Rep.  581 ;  3  Dallas,  226,  227,  etc.) 

16.  That  to  render  a  war  lawful,  and  legalize  the  damage  done  in 
the  course  of  it,  no  declaration  is  necessary.  (Bynkershoek  on  the 
Law  of  War,  ch.  2;  Grotius,  lib.  3.  ch.  3,  §  6,  notes  1  and  2.) 

17.  That  when  a  state  authorizes  reprisals  for  national  injury  to  be 
made  by  an  indiscriminate  seizure  of  the  property  of  the  subjects  of 
another,  this  order  is  equivalent  to  a  declaration  of  war.  (Dana's 
Wheaton,   §  291.) 

18.  That  in  recognizing  that  France  was  at  war  against  us  we  recog- 
nized that  the  laws  of  war  were  applicable  to  her  proceedings,  and 
were  estopped  to  claim  that  they  were  piratical.  (1  Stat.  L.,  act  of 
July  9,  1798;  Bas  v.  Tingy,  4  Dallas,  38;  1  Cranch,  1.) 

19.  That  the  political  departments  of  the  Government  having  recog- 
nized that  France  was  at  war  in  respect  of  the  seizures  of  our  vessels, 
the  courts  can  not  consider  as  piratical  those  acts  of  hostility  which 
were  so  directed  against  our  vessels.  {U.  S.  v.  Palmer,  6  Wheaton, 
634.) 

20.  That  the  confiscation  of  enemy's  vessels  and  cargoes  is  lawful 
under  the  law  of  nations,  and  rests  upon  the  sound  discretion  of  the 
national  sovereign.     (8  Cranch,  145.) 

21.  That  the  property  of  the  subjects  of  one  nation  may  be  con- 
fiscated by  another,  after  a  failure  to  satisfy  for  an  injury  and  with- 
out a  war.  (Vattel,  bk.  2,  ch.  18,  §  342;  Dana's  Wheaton,  §  290; 
Kliiber,  Droits  dcs  Gens,  §  234,  note  C ;  Burlamaqui,  Droits  des  Gens, 
pt.  4,  ch.  3,  §  42.) 


312  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Mr.  William  E.  Earle,  having  participated  in  the  original  argument 
for  claimants  and  tiled  printed  briefs,  submitted  the  following  proposi- 
tions : 

I.  That  certain  claims  of  American  citizens  have  been  released  to 
France.  This  we  established  by  the  treaty  of  1800,  and  by  the  cor- 
respondence and  negotiations  relative  thereto,  as  officially  published 
in  Ex.  Doc.  102,  1st  sess.,  19th  Cong. 

II.  That  these  claims  for  indemnity  were  valid  against  France,  and 
that  her  liability  for  them  was  admitted  by  France.  This  we  have 
established  by  well  settled  principles  of  the  law  of  nations  and  the 
treaties  between  the  two  nations,  and  the  evidence  in  Ex.  Doc.  102. 

III.  That  the  United  States  released  to  France  these  claims  of 
American  citizens  "for  a  valuable  consideration  for  the  public  benefit," 
ignoring  the  rights  of  individual  citizens  who  had  suffered  by  the 
spoliations.  This  we  have  established  by  the  treaty  of  1800,  and  the 
correspondence  and  negotiations  as  to  it,  as  published  in  Ex.  Doc.  102, 
and  the  proceedings  of  the  two  nations  as  to  its  ratification. 

IV.  That  the  release  by  France,  of  her  claims  for  indemnity,  for 
the  failure  to  keep  the  treaties  of  1778,  and  for  making  the  Jay  treaty, 
in  1794,  was  to  the  United  States  a  "valuable  consideration,"  for  their 
release  to  France  of  these  claims  of  their  citizens  against  hef.  This 
we  have  established  by  the  official  correspondence  published  in  Ex. 
Doc.  102,  and  the  treaties  of  1778,  and  well  recognized  principles  of 
the  law  of  nations. 

V.  That  whilst  prize  courts  may  hold  themselves  bound  to  administer 
the  local  laws  and  regulations  of  their  own  country,  and  whilst  their 
own  decrees  are  final  as  to  property  in  the  res,  yet  their  judgment  is 
the  act  of  their  government,  and  a  valid  diplomatic  claim  rests  upon  it, 
if  the  condemnation  is  in  derogation  of  the  law  of  nations  or  impairs  a 
treaty.  This  we  have  established  by  decisions  of  our  Supreme  Court, 
and  by  the  settled  law  of  nations. 

VI.  That  in  the  treaty  of  1800,  the  governments  of  the  two  coun- 
tries came  together  in  an  adjustment  of  their  differences  or  "misun- 
derstanding," as  on  the  basis  of  the  continued  existence  of 
the  treaties  of  1778,  and  agreed  "to  negotiate  further"  as  to 
those  treaties  and  the  mutual  claims  for  indemnity  for  their  mutual 
violations  of  them ;  and  subsequently,  in  its  ratification,  the  United 
States  secured  a  release  from  the  future  obligations  of  the  treaties  of 
1778  and  their  liabilities  for  having  failed  to  observe  them,  in  con- 


GUSHING  V.  UNITED  STATES  313 

sideration  of  a  release  to  France  of  their  claims  for  reclamation  of 
American  citizens.  The  bargain  was  not  only  a  set-off  of  the  mutual 
claims  to  indemnity,  but  a  release  to  the  United  States  from  these 
treaties  for  the  future. 

VII.  That  war  leaves  the  right  to  captured  property  with  the  posses- 
sor at  the  time  of  the  signing  of  the  treaty ;  but  in  view  of  the  fact 
that  there  had  been  no  war,  this  treaty  mutually  restored  all  captures 
on  hand. 

VIII.  That  the  question  arises  as  to  what  cases  come  within  the  class 
of  those  released  to  France,  in  the  bargain  effected  by  the  rescission  of 
the  second  article,  and  were  therefore  valid  claims  against  France, 
and  not  excluded  by  the  terms  of  the  exceptions  relating  to  the  three 
other  treaties,  as  declared  in  the  terms  of  the  jurisdictional  act,  refer- 
ring these  claims  to  this  court.  And  the  answer  to  this  is,  all  "for 
illegal  captures,  detentions,  seizures,  condemnations,  and  confiscations, 
made  prior  to  July  31,  1801,"  which  do  not  come  within  one  of  the 
three  exceptions  of  the  jurisdictional  act,  and  which  were  made  in 
violation  of  the  treaties  between  France  and  the  United  States,  and 
in  violation  of  the  law  of  nations.  And  this  answer  must  be  applied  to 
the  state  of  facts  established  by  the  evidence  in  each  particular  case. 

IX.  That  most  of  these  condemnations  were  based  on  the  want  of  a 
role  d'eqtiipage,  which  was  required  by  the  ancient  maritime  regula- 
tions of  France,  and  this  regulation  was  reenacted  after  the  treaties 
of  1778.  The  civil  tribunals  on  appeal  from  the  tribunals  of  com- 
merce, held  that  this  regulation  was  binding  on  the  courts  of  France 
without  regard  either  to  the  treaties  or  to  the  laws  of  nations.  These 
condemnations,  we  maintain,  were  not  only  in  violation  of  the  treaty 
but  of  the  law  of  nations. 

X.  That  condemnations  because  the  captain  or  mate  was  foreign- 
born,  though  a  naturalized  American  citizen,  were  in  violation  of  the 
law  of  nations. 

XI.  That  condemnations  for  running  a  blockade  were  unlawful,  for 
it  is  a  well-established  historical  fact  that  the  French  had  not  a  block- 
ade in  the  West  Indies,  and  the  very  proclamations  of  blockade  them- 
selves, show  that  they  were  brntum  fidmen  and  mere  pretexts  for 
making  captures. 

XIT.  That  the  few  remaining  captures  were  on  the  ground  of  carry- 
ing British  productions  or  trading  to  British  ports,  both  whereof  are 
indisputably  in  violation  of  the  treaty  and  are  in  contravention  of  the 
law  of  nations. 


314  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

XIII.  An  illegal  condemnation  by  a  prize  court  is  the  act  of  the 
government  of  that  court,  and  the  valid  basis  of  a  diplomatic  claim. 

Mr.  JVilliam  Gray,  Mr.  George  S.  Bontwell,  Mr.  Edward  Lander, 
Mr.  Lawrence  Lezvis,  Jr.,  Mr.  Samuel  Shellabarger,  Mr.  Jere  Wilson 
and  Mr.  Leonard  Myers  were  also  heard  in  support  of  the  position 
taken  by  the  claimants. 

Argument  of  Mr.  B.  Wilson  for  the  defendants : 

The  third  section  of  the  jurisdictional  act  January  20,  1885,  pro- 
vides that  this  court  "shall  decide  upon  the  validity  of  said  claims 
according  to  the  rules  of  law^,  municipal  and  international,  and  the 
treaties  of  the  United  States  applicable  to  the  same,  and  shall  report 
all  such  conclusions  of  fact  and  law  as  in  their  judgment  may  afifect 
the  liability  of  the  United  States  therefor." 

By  the  sixth  section  it  is  provided  that  such  finding  and  report  shall 
be  only  advisory. 

Congress  wants  no  information  from  the  court,  but  positive  fact 
and  positive  law,  and  when  the  court  finds  such  a  thing  is  the  fact 
and  such  a  principle  is  the  established  law,  and  so  report  to  Congress, 
that  body  proposes  to  take  action  according  to  its  own  wisdom  upon 
the  report  so  made.  For  example,  the  Supreme  Court,  interpreting 
the  acts  of  the  political  department,  have  settled  the  question  as  to 
war  in  all  its  bearings,  and  the  law  to  be  that  it  was  such  a  war  as 
authorized  captures  and  condemnations  as  prize  and  made  one  gov- 
ernment the  enemy  of  the  other.  (4  Dallas,  38;  1  Cranch,  pp.  1-9,  31, 
32,  39,  40,  41.)  What  more  can  be  done  but  to  report  accordingly? 
Again,  the  Supreme  Court  {Ware,  Administrator,  v.  Hylton,  et  al., 
3  Dallas,  258,  1796)  have  settled  the  law  of  nations  to  be  that  treaties 
between  sovereign  powers  when  broken  by  one  are  voidable  at  the 
option  of  the  other;  and  in  Chirac  v.  Chirac,  the  same  court,  Mar- 
shall, Ch.  J.,  delivering  the  opinion,  held  that  in  1799  no  treaty  was 
in  existence  between  France  and  the  United  States.  (2  Wheaton, 
272.) 

What  can  be  done  by  this  court  but  report  that  such  is  the  law  on 
that  subject?  In  the  same  manner,  by  reference  to  standard  author- 
ities, should  all  other  legal  principles  be  ascertained  and  reported,  as, 
for  example,  the  conclusiveness  of  prize  adjudications  {Cushing  v. 
Laird,    107    U.    S.    69),    and    invalidity    in    latv    of    claims,    based 


GUSHING  V.  UNITED  STATES  315 

either  upon  such  adjudications  (Lord  Eldon  in  2  Swanston,  576)  or 
upon  acts  of  war,  and  the  necessity  of  exhaji^titig  remedies  in  the 
courts  in  such  cases  (other  than  prize  cases,  however),  where  vaHd 
claims  may  exist.  AH  these  things  are  settled  law,  and  operate  favor- 
ably to  the  United  States  in  this  matter.  Special  exemptions  from  the 
general  law  must  be  specially  pleaded  and  proven.  For  example,  if 
some  of  the  captured  were  prevented  from  exhausting  their  remedies, 
and  it  appears  that  all  were  not,  it  is  incumbent  on  each  claimant  to 
show  that  he  was  so  prevented.  The  burden  must  be  on  some  one  to 
show  it,  and  he  who  asserts  a  fact  must  prove  it,  and  not  he  who 
denies  it  prove  the  negative.  Most,  practically  all  these  claims  would 
be  invalid  for  want  of  exhaustion  of  remedies,  if  not  already  invalid 
because  prize  judgments  are  conclusive  and  final. 

The  facts  to  be  reported  are,  of  course,  the  when  and  how,  where 
and  why,  seizures  and  captures  were  made  by  the  French.  These 
being  found,  then  the  question  of  law  arises,  were  they  illegally  made? 
Were  they  made  in  pursuance  of  international  law?  It  is  not  pre- 
tended that  they  were  made  without  authority  of  French  law.  But  it 
is  pretended  that  France  had  no  right  under  the  law  of  nations  to 
pass  such  laws.  If  this  was  pretended  of  the  laws  of  Congress  in 
1798  authorizing  condemnation  of  French  property  we  should  call 
the  pretense  an  absurdity.  However,  were  the  laws  illegal  according 
to  international  law?  Upon  what  alleged  right  of  France  were  they 
based  ?  Evidently  on  the  right,  which  every  nation  has,  of  using  force 
to  retaliate  upon  another  nation  which  she  believes  to  have  deprived 
her  of  her  rights  secured  by  treaty,  and  to  have  wronged  her  other- 
wise. Was  this  using  of  force  by  France  for  such  a  purpose  legal 
or  illegal?  Vattel  and  Grotius,  and  other  writers  on  the  law  of 
nations,  tell  us  that  such  law^s  are  proper,  and  that  it  is  for  every 
sovereign  nation  to  decide  for  itself  when  they  ought  to  be  passed, 
not  because  might  is  right,  but  because  there  is  nobody  else  to  decide 
the  question.  If  the  law  is  right  and  proper,  was  it  legal  to  enforce 
it  in  the  courts?  To  ask  such  a  question  is  to  answer  it.  The  right 
of  a  sovereign  to  enact  such  laws  is  as  well  settled  as  any  interna- 
tional question  can  be. 

When  the  commander  of  a  French  vessel  captured  an  American 
vessel  there  was  only  one  legal  way  to  determine  whether  he  had 
legally  captured  her,  and  whether  she  was  larcvfuJ  prize  under  the 
treaties  and  the  law^  of  nations,  and  that  was  by  trial  in  a  prize  court 


316  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  the  captor's  country ;  so  says  the  law  of  nations.  That  trial  and 
the  finding  were  not  only  legal,  but  the  only  legal  ones  possible.  Any 
other  trial  and  a  finding,  in  any  other  kind  of  court,  in  any  other  coun- 
try, would  have  been  illegal,  but  not  this.  This  is  another  conclusion  of 
the  law  of  nations  which  affects  the  liability  of  the  Government  of 
the  United  States  when  subrogated  to  the  liability  of  France.  Prize 
judgments  are  not  disregarded  by  international  commissions  created  by 
the  consent  of  nations,  because  they  are,  properly  speaking,  illegal, 
but  for  reasons  of  diplomacy  and  compromise.  For  example,  the 
Alabama  Commission,  as  one  of  the  opposite  counsel  stated,  disre- 
garded decisions  of  the  Supreme  Court  in  prize  cases.  The  reports 
of  those  Commissioners  show  that  the  correctness  and  legality  of  the 
court's  decisions  were  not  disputed,  but  under  the  treaty  they  were  to 
decide  according  to  abstract  justice  rather  than  according  to  law.  Law 
works  absolute  justice  in  most  cases,  but  fails  to  do  so  in  the  excep- 
tional cases.  Nations  can  waive  their  right  to  the  enforcement  of  law 
in  such  exceptional  cases. 

This  was  proposed  by  American  envoys  for  France  to  do  in  1800,  but 
she  refused  because  we  did  not  agree  to  her  propositions.  In  the 
Alabama  cases  the  waiver  was  agreed  upon.  That  consent  could 
rightly  have  been  withheld,  and  the  law  insisted  on,  but  policy  induced 
the  contrary.    To  quote  from  the  argument  used  in  those  cases : 

It  was  further  maintained  on  behalf  of  the  claimants  that,  under 
the  treaty  of  Washington,  the  Commissioners  were  not  consti- 
tuted a  tribunal  which  in  prize  cases  had  a  merely  appellate  juris- 
diction to  review  the  judgments  of  the  prize  court  of  last  resort; 
that  the  Commissioners  had,  by  the  terms  of  the  treaty,  greater 
and  more  absolute  power  to  do  justice  than  was  or  could  be  ex- 
ercised by  the  prize  courts  of  the  United  States ;  and  that  even  if 
the  Commissioners  should  be  satisfied  that  upon  the  record  pre- 
sented to  the  prize  court,  the  facts  disclosed  warranted  condem- 
nation under  the  lazi'  of  nations,  yet  if  they  found,  under  all  the 
circumstances  of  the  case,  that  in  justice  and  equity  the  claimants 
were  entitled  to  indemnity,  it  was  their  solemn  duty  to  award  it, 
even  though  it  were  in  the  face  of  the  technical  rule  of  the  prize 
courts. 

As  stated,  nations  may  waive  their  right  under  international  law, 
and  reach  results  mutually  satisfactory  by  diplomacy,  but  diplomacy  is 
not  international  law. 

This  can  only  be  done  by  consent  of  sovereign  nations,  and  money 


GUSHING  V.  UNITED  STATES  317 

paid  upon  claims  thus  admitted  or  created,  is  a  gift  or  donation  for 
purely  political  and  diplomatic  reasons  (2  Swanston,  576).  France 
did  not  waive  her  legal  right  as  to  the  conclusiveness  of  the  judg- 
ments of  her  prize  courts,  nor  to  the  necessity  for  claimants  to  ex- 
haust their  remedy  by  appeal  or  otherwise,  nor  as  to  the  effect  of 
the  public  maritime  war  between  the  two  nations.  She  declined  to 
waive  these  rights,  because  we  refused  to  revive  without  modifica- 
tion the  ancient  treaties. 

As  to  the  alleged  admissions  and  the  statements  made  and  omitted 
in  the  notes  exchanged  between  the  French  and  American  negotiators 
of  the  treaty  of  1800,  embraced  between  pages  580  and  637,  Senate 
Ex.  Doc.  102,  19th  Cong,,  1st  sess.,  a  perusal  of  those  pages  with  care 
and  anxiety  does  not  reveal  either  the  admissions  or  omissions  relied 
on  by  claimants.  Neither  any  waiving  of  the  exhaustion  of  remedies 
by  France,  nor  any  admission  of  the  validity  of  the  claims,  occurs  any- 
where in  that  negotiation.  The  various  proposals  and  counter-pro- 
posals, being  mere  diplomatic  chaffering,  might  explain,  but  could  not 
alter,  what  was  done.  Claims  for  indemnities  due  or  claimed  were 
renounced  (that  is,  as  the  word  means,  zuithdrazvn) ,  and  Congress  has 
asked  this  court  to  determine,  under  international  law  and  the  treaties, 
which  were  also  laze,  whether  they  were  due  or  not. 

The  American  envoys  (Ex.  Doc.  102,  19th  Cong.,  1st  sess.,  p.  587, 
etc.),  admitted  the  following  rights  of  France  under  the  law  of  nations 
by  asking  her  to  zvaive  them,  viz.,  the  conclusiveness  of  prize  judg- 
ments (i.  e.,  the  exclusiveness  of  prize  jurisdiction  in  the  capturing 
Government),  the  right  to  construe  for  itself  the  treaty  of  1778,  as 
to  the  role  d'eqiiipage  and  the  right  to  pass  the  retaliatory  decree  of 
January  18,  1798.  The  principle  of  conclusiveness  of  judgments  ac- 
tually was  incorporated  in  the  treaties  of  1800  (Art.  4)  and  1803 
(Art.  5),  and  the  necessity  for  exhausting  remedies  into  the  latter 
treaty  (Art.  4),  for  payments  were  to  be  made  in  cases  "appealed 
within  the  time  necessary."  (See  the  treaty  in  French,  8  Stat.  L.) 
The  proposition  to  waive  her  rights  was  responded  to  by  France  with 
the  proposition  that  the  hostile  measures,  including  the  abrogation  of 
treaties,  must  be  receded  from;  for,  of  course,  if  the  nations  did  not 
now  agree  that  they  had  been  at  peace,  no  indemnities  would  be  due 
for  hostile  acts.  They  must  first  of  all  settle  what  their  status  had 
been  and  was  now — peace  or  war.  If  peace,  what  had  been  done  that 
was  of  a  hostile  character  would  thus  be  adjudged  to  be  illegally  and 
piratically  done,  and  indemnities  might  be  due;  but  if  war,  the  ravages 


318  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  zvar  give  rise  to  no  indemnities.  The  two  nations,  disregarding  the 
unauthorized  makeshift  reported  by  their  respective  agents  in  the  sec- 
ond article,  adopted  the  latter  alternative — v^ar,  and  no  indemnities 
due.  It  had  to  be  called  war  or  piracy  on  both  sides,  and  the  Presi- 
dent and  Senate,  with  the  concurrence  of  France,  adjudged  that  it 
was  not  piracy,  but  war.  The  Chief  Justice,  Ellsworth,  our  principal 
envoy,  had  said  to  the  President:  "Having  given  your  draft  of  in- 
structions such  perusal  as  the  hurry  and  pressure  of  a  court  crowding 
two  terms  into  one  admits  of,  I  remark,  with  all  the  freedom  you  in- 
vite, that  to  insist  that  the  French  Government  acknowledge  its  orders 
to  be  piratical,  or,  which  is  the  same,  absolutely  to  pay  for  depreda- 
tions committed  under  them,  is,  I  believe,  unusually  degrading,  and 
would  probably  defeat  the  negotiation,  and  place  us  in  the  wrong." 
(2  Flanders'  Chief  Justice,  236.) 

One's  eyes  must  be  shut  to  all  the  rights  of  France  as  a  sovereign, 
and  all  the  plainest  law  of  nations,  and  the  decisions  of  our  Supreme 
Court,  not  to  see  the  legality  of  the  laws  passed  by  France  in  retalia- 
tion for  our  injuries  to  her  and  to  force  us  to  fulfill  the  treaties  we  had 
violated  and  refused  to  fulfill.  The  Supreme  Court  said  the  nations 
were  in  a  state  of  public  zvar  authorized  by  both  Governments.  One 
of  its  reasons  for  deciding  was,  that  war  and  only  war,  could  justify 
the  depredations,  confiscations,  and  bloodshed,  on  either  side,  and  the 
honor  of  both  nations  required  it  to  be  called  war.  Now,  is  it  not 
necessary  to  establish  these  eight  propositions  before  declaring  the 
condemnation  of  these  ships  illegal? 

( 1 )  That  the  treaty  did  not  require  the  crew-list  when  it  mentioned 
the  crew-list. 

(2)  That  the  French  court  had  no  right  to  construe  the  treaty  ac- 
cording to  its  own  understanding  of  it. 

(3)  That  the  French  Government  had  no  right  to  pass  the  retalia- 
tory decree. 

(4)  That  the  French  courts  had  no  right  to  decide  whether  the 
French  Government  had  such  right  under  international  law. 

(5)  That  the  treaty,  though  violated  by  us,  was  still  binding  in  all 
its  details  on  France. 

(6)  That  the  treaty  dispensed  with  all  proofs  except  the  passport, 
which  it  said  must  be  on  board. 

(7)  That  the  judgments  of  prize  courts  are  not  exclusive  and  con- 
clusive against  all  the  world. 

(8)  That  there  was  peace. 


GUSHING  V.  UNITED  STATES  319 

Allow  all  of  these  eight  propositions,  and  it  may  be  admitted  that 
the  condemnation  of  these  vessels  was  illegal.  Deny  any  one  of  them, 
and  these  cases  must  fall  to  the  ground.  It  is  said  by  counsel  that 
the  decisions  of  the  French  courts  as  to  these  captures  were  always 
against  the  Americans.  Perhaps  international  law  was  likewise  against 
them.  They  were  found  violating  belligerent  rights  of  France.  But 
in  no  less  than  three  out  of  the  four  or  five  cases  exhibited  here  merely 
to  show  the  jurisdiction  of  the  court  of  cassation,  the  supreme  court 
of  error  in  France,  the  vessels  of  these  Americans  were  released.  But 
it  is  said  the  inferior  tribunals  at  least  always  decided  against  the 
captured.  This  is  also  erroneous,  for  we  have  here  a  list  of  cases 
from  St.  Domingo  decided  in  1797  and  1799,  and  out  of  a  little  over  a 
hundred  captures  of  suspected  vessels  there  were  thirty-three  releases. 
It  is  in  St.  Domingo  that  the  French  are  charged  with  being  most 
lawless. 

In  the  midst  of  the  most  bitter  war  ever  waged  between  France  and 
England,  the  English  courts  never  in  any  case  disputed  the  conclu- 
siveness of  French  prize  judgments.  It  is  true  that  they  decided  that 
neutrals  were  saved  from  danger  when  recaptured  from  the  French; 
and  so  said  Napoleon;  so  said  our  Supreme  Court  in  1  Cranch,  1.  But 
Napoleon  said  that  the  injustice  of  the  French  laws,  so  far  as  they 
affected  real  neutrals,  was  just  retaliation  as  regarded  the  Americans, 
for  their  Jay  treaty,  and  our  Supreme  Court,  in  that  very  case,  decided 
that  France  and  America  were  enemies  and  at  war. 

The  whole  world,  it  is  said,  are  parties  to  an  admiralty  cause,  and, 
therefore,  the  whole  world  is  bound  by  the  decision.  So  says  Judge 
Marshall.  (9  Cranch,  126.)  "These  sentences  are  admissible  and 
conclusive  between  the  assured  and  the  underwriters  as  to  every  fact 
which  they  profess  to  decide."  (B.  &  P.  20.)  If  a  ship  is  condemned 
as  enemy  property,  whatever  ''ordinances"  may  be  referred  to,  it  is 
conclusive.  (5  East.  155.)  If  the  court  comes  to  the  conclusion  that 
the  vessel  is  not  neutral,  it  is  quite  immaterial  through  what  media  it 
arrived  at  it.  (Lord  Mansfield,  2  Taunton,  85.)  If  infraction  of 
treaty  be  the  ground,  the  condemnation  is  legal  and  conclusive,  al- 
though, where  a  treaty  required  certain  documents  on  the  ship,  munici- 
pal lazvs  were  referred  to  as  showing  what  the  treaty  required,  and 
although  the  court  "construed  the  treaty  iniquitously."  (Lord  Ellen- 
borough,  5  East.  99.)  If  the  court,  by  the  aid  of  the  ordinances  of 
its  country,  reached  the  conclusion  that  it  was  enemy  property,  it  is 


320  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

conclusive.  The  sentence  is  conclusive  if  based  on  breach  of  treaties, 
however  there  may  not  have  been  such  a  breach.  {Id.;  Piggott,  For- 
eign Judgments,  258;  4  Cranch,  433.)  Croudson,  et  al.  v.  Leonard, 
Johnson,  J.,  delivering  the  opinion,  held :  "I  am  of  the  opinion  that 
the  sentence  of  condemnation  v^as  conclusive  evidence  of  the  commis- 
sion of  the  offense  for  which  the  vessel  was  condemned."  In  6  Mass. 
Reports,  277,  John  Baxter,  et  al.  v.  The  Nezv  England  Marine  Insur- 
ance Company,  it  was  held:  In  an  action  upon  a  policy  of  insurance, 
the  sentence  of  a  foreign  court  of  vice-admiralty,  condemning  the  ship 
insured  for  a  breach  of  blockade  is  conclusive  evidence  of  the  fact  of 
such  breach  of  blockade.  (8  Term  Rep.  192;  id.  434;  2  Douglas, 
575 ;  6  Bee's  U.  S.  Rep.  165,  affirmed  on  appeal ;  7  Term  Rep.  681 ; 
2  Shower,  232;  3  B.  &  P.  201;  id.  499;  2  Taunton,  7,  35 ;  8  Mass. 
536.) 

The  honorable  Chief  Justice  inquired  whether  all  the  cases  cited 
as  to  conclusiveness  did  not  apply  to  private  parties,  as  distinguished 
from  sovereign  nations. 

The  litigants  were  private  parties  in  these  cases ;  but  Chief  Justice 
Ellsworth  and  our  other  envoys  claimed  no  such  distinction  when  they 
asked  the  Government  of  France  to  waive  the  principle.  The  two 
nations,  when  they  negotiated  the  treaty  of  1800  (Art.  4)  and  the 
treaty  of  1803  (Art.  5),  recognized  that  the  principle  applied  between 
nations.  We  have  only  to  look  at  the  reason  for  this  principle.  What 
is  the  reason?  Harmony,  peace,  concession  to  the  universal  welfare 
of  mankind;  that  which  in  our  municipal  cases  is  called  the  policy  of 
the  law.  It  is  the  policy  of  the  law  of  nations.  If  the  political  depart- 
ment of  one  nation  could  erect  itself  into  a  court  of  appeals  to  reverse 
the  decisions  of  the  supreme  court  of  another  nation  having  by  inter- 
national law  jurisdiction  of  the  parties  and  subject-matter,  what  liti- 
gant could  ever  be  satisfied  until  his  country  had  become  involved  in 
war?  (Reference  is  made  on  this  point  to  Douglas,  619  and  617,  and 
treaties  there  cited.  Also,  to  the  treaty  between  Great  Britain  and 
Denmark.  July  11,  1670,  article  Z7  \  treaty  between  Russia  and  Great 
Britain,  October,  1801,  article  2;  treaty  between  Louis  XIV  and  Great 
Britain,  1677,  article  12 ;  treaty  between  the  Netherlands  and  Charles 
II  of  England,  1647,  article  12;  same  parties,  1668,  article  16.  Also 
Piggott's  Foreign  Judgments,  249 ;  Vattel,  b.  2,  ch.  7,  §  85  ;  9  Cranch, 
126 ;  Campbell  v.  Mullett,  2  Swanston,  576.  577,  578,  579,  584,  585  ; 
also,  article  5,  treatv  of  the  United  States  and  France.  1803.) 


GUSHING  V.  UNITED  STATES  321 

The  treaties  referred  to  recognize  that  the  jurisdiction  of  prize 
belongs  exclusively  and  finally  to  the  capturing  Government.  For 
instance:  "If  the  King  of  France  shall  complain  of  the  unjustness  of 
sentences  which  have  been  given  concerning  the  ships  or  merchandise 
taken  at  sea  (or  of  the  wrong  interpretation  of  the  treaty  by  the 
courts),  the  King  of  Great  Britain  shall  forthwith  commission  under 
his  great  seal  nine  of  his  privy  counsel  to  adjudge  such  matters  and 
to  confirm  or  revoke  these  sentences."  So  we  see  that  according  to 
the  theory  of  these  treaties  unless  the  Government  of  the  captor  does 
not  choose  to  reverse  the  decision  of  his  own  courts  their  decisions 
stand  conclusive  against  the  other  nations.  Such  is  the  law  of  nations 
as  to  prize  judgments.  This  does  not  prevent  a  nation  from  claim- 
ing anything  it  may  desire  or  another  nation  from  granting  what  is 
claimed  if  it  sees  fit. 

Davis,  J.,  delivered  the  opinion  of  the  court : 

This  case,  with  others  like  it,  was  fully  argued  at  the  last  term, 
and  after  careful  study  and  industrious  conference  an  opinion  was 
delivered  upon  the  general  principles  applicable  to  the  claims  as  a 
class,  while  final  and  detailed  findings  were  delayed,  at  the  defendants' 
request,  until  after  the  summer  recess.  During  this  recess  the  law 
officers  of  the  Government,  diligently  and  jealously  guarding  the  in- 
terests intrusted  to  them,  have  carefully  studied  not  only  the  facts  of 
the  several  cases,  but  have  reexamined  the  general  principles  applicable 
to  the  claims  as  a  class — principles  understood  to  have  been  finally  set- 
tled, so  far  as  this  court  is  concerned,  by  the  former  decisions. 

The  defendants  now  move  for  a  rehearing,  and  somewhat  contrary 
to  the  usual  practice,  but  in  furtherance  of  the  substantial  ends  of 
justice,  a  full,  able,  and  learned  argument,  occupying  nearly  two  weeks, 
has  been  had,  in  which  all  the  questions  heretofore  considered  have 
again  been  exhaustively  discussed.  Thus,  upon  a  motion  for  permis- 
sion to  reargue  the  case,  it  has  in  fact  been  reargued,  and  in  deciding 
the  motion  we  act  with  all  the  light  we  should  have  received  had  the 
more  technical  course  been  pursued  of  first  allowing  the  motion  and 
then  hearing  the  reargument. 

The  learned  Solicitor-General,  who  has  personally  appeared  with 
the  assistant  attorney  of  the  United  States  who  so  competently  con- 
ducted the  defense  of  these  claims,  takes  as  the  text  of  his  argument 
certain  suggested  conclusions  of  law,  twenty-five  in  number,  manv  of 


322  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

which  may  be  readily  admitted,  either  standing  alone  or  in  the  con- 
nection in  which  they  are  used,  without  leading  to  a  result  different 
from  that  already  reached  by  this  court;  while  considered  as  a  whole 
they  form  the  successive  links  of  a  chain  of  argument  which,  if  per- 
fect, defeats  all  the  claims  submitted  under  the  act  of  Congress. 

Many  of  the  difficulties  surrounding  these  cases  will  disappear  under 
the  touchstone  of  the  jurisdictional  act,  for  it  must  always  be  remem- 
bered that  we  are  not  now  to  decide  in  accordance  with  the  general 
statutes  giving  us  exclusive  jurisdiction  of  actions  between  the  citi- 
zen and  his  Government  founded  on  contract,  nor  yet  under  the  special 
jurisdiction  conferred  by  such  laws  as  the  "Bowman  Act,"  by  which, 
in  aid  of  Congress,  we  report  facts  to  that  body  or  its  committees,  and 
facts  and  law  to  the  Executive  Departments  for  their  "guidance  and 
action;"  nor  under  the  jurisdiction  given  by  Section  1063  of  the 
Revised  Statutes,  which  authorizes  us  to  proceed  to  final  judgment  in 
claims  of  a  certain  nature  transmitted  to  us  by  the  heads  of  the  prin- 
cipal Executive  Departments.  In  all  these  cases  we  sit  as  a  court 
bound  to  administer  the  law  found  in  the  Constitution,  statutes,  and 
common  law  of  the  United  States  as  interpreted  by  the  Supreme  Court, 
and,  so  far  as  we  have  yet  seen,  not  one  of  the  spoliation  claims  could 
have  the  slightest  pretense  of  a  successful  result  were  the  investigation 
to  be  measured  by  the  standard  set  for  us  in  other  causes.  It  can  not 
be  presumed  that  Congress,  in  passing  the  act  of  1885,  with  full  knowl- 
edge of  the  law  and  facts,  intended  an  empty  form ;  therefore  it  fol- 
lows that  they  desired  us  not  only  to  examine  these  claims,  but  to 
examine  them  in  the  light  of  some  rule  different  from  that  upon  which 
w^e  must  ordinarily  proceed. 

The  statute  says  that  those  citizens  or  their  legal  representatives 
who  had  "valid  claims"  of  a  specified  class  upon  the  French  Gov- 
ernment, arising  out  of  certain  illegal  acts  committed  prior  to  the  rati- 
fication of  the  treaty  of  1800,  may  apply  to  this  court  (§  1)  ;  we  are 
then  to  determine  the  validity  and  amount  of  these  claims  "according 
to  the  rules  of  law,  municipal  and  international,  and  the  treaties  of  the 
United  States  applicable  to  the  same,"  but  we  can  not  enter  judg- 
ment; on  the  contrary,  after  the  hearing  we  may  only  report  to  the 
Congress  such  conclusions  of  fact  and  law  as  in  our  opinion  may 
affect  the  liability  of  the  United  States  for  these  claims  (§§  3  and  6), 
and  this  report  is  binding  on  neither  the  claimant  nor  the  Congress 
(§6). 


GUSHING  V.  UNITED  STATES  323 

The  first  question  presented,  then,  is  as  to  the  vaHdity  of  the  claims 
against  France.  This  is  an  international  question  not  within  the  scope 
or  ordinary  judicial  inquiry,  and  is  to  be  measured  by  rules  of  law 
well  known,  thoroughly  recognized,  and  often  enforced,  but  which  in 
the  very  nature  of  things  are  not,  in  the  absence  of  special  legislative 
authority,  presented  to,  argued  before,  or  passed  upon  by  the  judicial 
departments  of  Governments.  These  rules  of  law  relate  to  the  rights 
and  obligations  of  nations,  not  to  the  title  to  property,  nor  to  the 
rights  of  individuals  between  themselves,  nor  yet  to  the  rights  of  indi- 
viduals against  their  own  Governments. 

While  many  of  the  propositions  of  the  defense  are  in  the  abstract 
sound,  they  rest  upon  the  basis  that  these  claimants  are  prosecuting  a 
legal  right  in  a  court  of  law  acting  under  the  usual  common-law  re- 
strictions of  such  a  tribunal  sitting  as  a  subordinate  agent  of  the  State 
with  strictly  defined  procedure  and  jurisdiction.  So  far  as  power  is 
concerned  this  court  is  not  so  sitting  in  these  cases ;  "judicial  power  is 
the  internal  or  civil  branch  of  executive  power  exerting  itself  under 
such  checks  and  controls  as  the  legislative  power  has  subjected  it  to" 
(11  Rutherforth,  59)  ;  those  checks  and  controls  are  well  defined  and 
well  understood,  and  are  such  as  operate  to  defeat  in  judicial  tribunals 
diplomatic  claims  founded  upon  international  right. 

We  are  for  the  present,  to  a  limited  degree,  absolved  by  express  act 
of  the  legislature  from  these  checks  and  controls. 

That  is,  we  are  to  aid  the  political  department  of  the  Government, 
by  its  direction,  in  the  disposal  of  contentions  which  arise  from  past 
international  transactions,  and  while  the  claims  of  individuals  now 
before  us  are  not,  from  a  judicial  point  of  view,  legal  rights — that  is, 
they  do  not  constitute  causes  of  action — they  may  be  none  the  less 
rights ;  that  is,  they  may  be  founded  on  law  but  not  enforceable  in  a 
court  of  law. 

We  do  not  intend  to  assume  any  legislative  function  or  to  determine 
any  abstract  right,  for  our  power  is  fixed  and  defined  by  the  Act  of 
Congress,  which  authorizes  no  such  course,  but  which  does  require 
something  more  than  a  bare  opinion  that  there  can  be  no  recovery  on 
these  claims  in  the  courts :  that  was  known  before  the  statute  was 
passed,  and  the  legislature  have  instructed  us  by  that  statute  to  advise 
them  not  as  to  the  law  enforceable  in  courts  of  law.  not  as  to  abstract 
rights,  but  as  to  the  law  enforceable  within  their  own  higher  jurisdic- 
tion. 


324  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

We  have  already  held  that  the  depredations  made  by  France  upon 
our  commerce  were  illegal,  and  notwithstanding  the  able  argument  of 
the  defense,  sustained  by  the  results  of  most  industrious  investiga- 
tion, we  do  not  see  reason  for  changing  this  conclusion.  The  quota- 
tions in  our  previous  opinion  show  that  the  Government  of  the  United 
States  uniformly  insisted  upon  the  illegality  of  the  conduct  of  France 
and  never  failed  to  demand  redress ;  they  show  that  France  admitted 
the  principle  of  the  American  contention ;  that  Spain  paid  claims  of 
this  class;  that  England  did  the  same,  and  that  by  the  principles  of 
the  law  of  nations  aside  from  any  definite  compact  such  as  that  of  1778, 
the  injuries  to  our  commerce  aflforded  good  foundation  for  diplomatic 
demand.  Upon  the  second  branch  of  the  case  we  held,  and  in  support 
of  the  position  cited  copiously  from  the  contemporaneous  negotiations 
and  instructions  of  the  American  Secretaries  of  State,  and  from  the 
correspondence  and  journals  of  the  American  ministers  charged  with 
the  protection  of  American  interests,  that  by  the  cancellation  of  the 
second  article  of  the  treaty  of  1800  the  United  States  set  off  the  spolia- 
tion claims  against  those  claims  which  France  had  against  us,  claims 
which  our  representatives  thought  of  so  much  gravity  and  of  so  much 
value  as  to  authorize  an  oflfer,  refused  by  France,  of  many  millions  of 
francs  for  a  release. 

It  seems  unnecessary  to  repeat  those  voluminous  citations,  or  to  add 
to  them,  from  the  mass  of  correspondence  which  we  have  read,  ex- 
tracts which  would  be  merely  cumulative.  We  have  carefully  re- 
examined the  question  in  the  light  of  the  reargument,  and  neverthe- 
less adhere  to  the  conclusions  reached  last  term  after  exhaustive  dis- 
cussion by  counsel  and  patient  and  laborious  investigation  by  our- 
selves, that  these  claims  (as  a  class)  were  valid  obligations  from 
France  to  the  United  States,  that  the  latter  surrendered  them  to  France 
for  a  valuable  consideration  benefiting  the  nation,  and  that  this  use 
of  the  claims  raised  an  obligation  founded  upon  right,  and  upon  the 
Constitution  (which  forbids  the  taking  of  private  property  for  public 
use  without  compensation),  to  compensate  the  individual  sufferers 
for  the  losses  sustained  by  them. 

We  do  not  decide  nor  have  we  attempted  to  decide  that  the  conduct 
of  the  Government  after  the  Revolution  and  prior  to  the  treaty  of 
1800  was  or  was  not  wise,  proper,  or  justifiable,  questions  which  are 
within  the  domain  of  the  historian,  and  have  not  been  submitted  to 
us;  we  advise,  whether  in  performance  of  their  public  duties,  and  in 


GUSHING  V.  UNITED  STATES  325 

protection  of  the  commonwealth,  and  in  carrying  out  the  directions  of 
those  having  the  right  to  give  them,  or  in  fulfillment  of  the  powers  and 
obligations  conferred  and  imposed  by  the  Constitution  and  laws,  the 
statesmen  of  that  period  took  such  action  in  relation  to  private  rights 
as  raised  an  obligation  on  the  part  of  the  Government  to  compensate 
the  citizen. 

We  are  to  see  whether  the  claims  urged  on  France  were  valid, 
whether  each  particular  claim  brought  before  us  is  one  of  the  class 
defined  in  the  statute,  whether  it  was  valid  in  law  against  France,  and 
whether  the  United  States  became,  by  their  action  in  1800  and  1801, 
liable  over  to  the  individual. 

The  Government  again  urges  that,  as  there  was  war  between  the 
United  States  and  France,  the  seizures  were  justifiable.  This  point 
we  have  so  fully  discussed  in  the  opinion  delivered  at  the  last  term 
that  now  it  seems  necessary  only  to  sum  up  our  conclusions  and  to 
consider  one  or  two  incidental  points  pressed  with  particular  energy 
by  the  defense  at  this  argument. 

There  were  what  were  called  by  some  "hostilities,"  by  others  "dif- 
ferences," by  Congress  "the  system  of  predatory  violence"  (1  Stat.  L. 
578),  by  Justice  Paterson  "a  qualified  state  of  hostility,"  "war  qvioad 
hoc,"  and  by  Justice  Chase  "limited  partial  war."  The  executive  de- 
partment said  the  conduct  of  France  would  have  justified  a  declara- 
tion of  war,  but  the  United  States,  "desirous  of  maintaining  peace," 
contented  themselves  "with  preparations  for  defense  and  measures 
calculated  to  defend  their  commerce"  (Doc.  102,  p.  561),  while  the 
United  States  ministers,  speaking  of  the  American  statutes,  wrote 
that  "they  did  not  even  authorize  reprisals  upon  [French]  merchant- 
men, but  were  restricted  simply  to  the  giving  of  safety  to  their  own 
till  a  moment  should  arrive  when  their  sufferings  could  be  heard  and 
redressed." 

Congress  did  not  consider  war  as  existing,  for  every  aggressive 
statute  looked  to  the  possibility  of  war  in  the  future,  making  no  pro- 
vision for  war  in  the  present,  and  France,  our  supposed  enemy,  abso- 
lutely denied  the  existence  of  war.  So  then,  the  legislative,  judicial, 
and  executive  branches  of  our  Government  recognized  no  war,  no 
public  solemn  war,  as  existing,  and  the  opposing  party  denied  the  fact. 

It  has  been  urged  that  the  compact  of  1800  was  a  treaty  of  peace ; 
but  we  do  not  agree  with  this  contention,  for  reasons  which  we  give 
further  on,  after  first  considering  the  subordinate  suggestion  made 
in  relation  to  the  caption  of  that  treaty  as  found  in  print. 


326  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Curiously  neither  of  the  originals,  that  supposed  to  be  in  the  custody 
of  France  nor  that  supposed  to  be  in  the  Department  of  State,  is 
obtainable.  That  belonging  to  this  Government  long  since  disappeared, 
and  we  are  informed  that  a  like  fate  has  befallen  the  French  copy. 
We  are  therefore  forced  to  turn  to  the  copies  in  print  in  various  com- 
pilations of  treaties  to  see  what  assistance  can  be  obtained  from  a 
careful  comparison  of  them.  No  material  difference  appears  anywhere 
but  in  the  caption,  and  there  we  should  expect  to  find  it,  as  the  caption 
is  not  part  of  the  treaty,  and  is  usually  drawn  to  suit  the  taste  of  the 
editor.     The  caption  in  the  Revised  Statutes  runs  as  follows: 

Convention  of  peace,  commerce,  and  navigation  with  France, 
concluded  at  Paris,  September  30,  1800;  ratification  advised  by 
Senate,  with  amendments,  February  3,  1801 ;  ratified  by  Presi- 
dent, February  18,  1801 ;  ratified  by  First  Consul  of  France,  with 
Senate's  amendments,  etc. 

Martens'  French  collection  of  treaties  contains  the  head-note,  "Con- 
vention entre  la  Republique  Frangaise  et  les  Etats-Unis  d'Amerique, 
signee  le  30  Septembre,  1800,"  and  the  editor  says  he  had  not  a  copy 
from  the  original  treaty,  but  relied  upon  another  publication.  Le 
Clerc  has  a  brief  caption  containing  the  word  "peace."  The  caption 
in  the  Bancroft  Davis  edition  of  treaties  entitles  the  compact  a  "Con- 
vention between  the  French  Republic  and  the  United  States  of  Amer- 
ica," and  gives  the  dates  of  signature,  exchange,  and  proclamation; 
while  the  caption  in  volume  8  of  the  Statutes  at  Large,  prepared  in 
1846,  runs  simply  as  follows:  "Convention  between  the  French  Re- 
public and  the  United  States  of  America."  It  should  be  noticed  as  to 
this  copy  that  the  letter  from  the  committees  of  Congress  found  at 
the  beginning  of  volume  8  states  that  they  "learn  that  every  law  and 
treaty  has  been  carefully  collated  with  the  originals  in  the  Department 
of  State." 

In  Mr.  Adams's  message,  dated  December  15,  1800,  transmitting  the 
treaty  to  Congress,  the  head-note  is  exactly  as  in  volume  8  of  the 
Statutes  (2  F.  R.  295). 

No  inference,  therefore,  can  be  drawn  from  the  caption,  and  the 
nature  of  the  treaty  must  be  gleaned  from  its  contents,  for  if  it  con- 
cludes a  war  that  fact  will  necessarily  appear  in  some  form  as  it  does 
in  the  treaties  of  1783  and  1814  with  Great  Britain,  and  in  the  treaty 
of  1848  with  Mexico.  The  object  of  the  treaty  is  stated  to  be  a  ter- 
mination of  the  "differences"  between  the  two  countries,  not  of  the 


GUSHING  V.  UNITED  STATES  327 

"war"  nor  even  of  the  "hostilities"  alleged  here  to  have  existed  between 
them.  Next  it  should  be  observed,  and  this  is  a  vital  distinction,  that 
the  treaty  is  of  limited  duration;  it  is  to  be  in  force  for  eight  years 
only.  Article  V  speaks  of  a  "misunderstanding" ;  and  in  the  twenty- 
seven  articles  of  the  agreement,  which  cover  the  many  different  sub- 
jects at  that  time  usually  found  in  a  treaty  of  amity  and  commerce, 
there  is  nothing  to  indicate  that  in  the  opinion  of  the  parties  there 
had  been  a  public  solemn  war  or  that  they  were  making  a  treaty  of 
peace. 

We  are  again  cited  to  Bas  v.  Tingy  (4  Dallas),  a  case  which  we 
considered  very  carefully  in  our  previous  opinion  and  from  which  we 
made  very  full  quotation,  holding  that  it  decided  the  state  of  affairs 
under  discussion  to  constitute  partial  war  limited  by  the  acts  of  Con- 
gress. The  opinions  of  the  Supreme  Court  speak  very  clearly  as  to 
the  relations  of  the  nations,  but  it  is  well  to  bear  distinctly  in  mind 
that  the  court  was  dealing  not  so  much  with  broad  principles  of  inter- 
national law  as  with  the  interpretation  of  statutes.  Tingy  claimed 
salvage  for  the  rescue  of  the  Elka  from  a  French  privateer,  and  this 
claim  he  based  upon  the  seventh  section  of  the  Act  of  March  2,  1799  ( 1 
Stat.  L.  716). 

The  act  is  entitled  "An  act  for  the  government  of  the  Navy  of  the 
United  States,"  and  the  seventh  section  makes  provision  for  salvage 
to  naval  vessels  for  American  vessels  retaken  from  France ;  in  con- 
struing this  statute  the  court  referred  to  the  act  of  June  13,  1798,  as 
explanatory  of  the  relations  between  the  United  States  and  France. 
This  latter  act  being  "An  act  to  suspend  the  commercial  intercourse 
between  the  United  States  and  France,  and  the  dependencies  thereof," 
does  not  in  any  way  lead  to  the  inference  that  public  solemn  war  existed, 
for  if  such  war  existed  a  formal  suspension  of  commercial  relations 
would  be  unnecessary,  and  the  contents  of  the  statute  negative  the 
inference  of  war  especially  in  the  provision  that  no  French  vessels 
"armed  or  unarmed,  commissioned  by  or  for  or  under  the  authority  of 
the  French  Republic,  or  owned,  fitted,  hired,  or  employed  by  any  per- 
son resident  within  the  territory  of  that  Republic,  or  any  of  the  de- 
pendencies thereof,  or  sailing  or  coming  therefrom,  excepting  any 
vessel  to  which  the  President  of  the  United  States  shall  grant  a  pass- 
port .  .  .  shall  be  allowed  an  entry  or  to  remain  within  the  ter- 
ritory of  the  United  States  unless  driven  there  by  distress  of  weather 
or  in  want  of  provisions,"  and  these  distressed  vessels  are  to  be  allowed 


328  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

to  provision  and  refit  (§3),  something  certainly  not  permitted  either 
in  time  of  war  or  reprisal. 

The  Act  of  June  28,  1798  (1  Stat.  L.  574),  also  considered  by  the 
court,  was  intended  as  an  addition  to  that  of  June  13,  1798  (1  Stat. 
L.  565),  and  makes  provision  as  to  the  amount  of  salvage  to  be  re- 
ceived by  American  war  vessels  capturing  French  armed  vessels  dur- 
ing what  the  latter  act  describes  as  the  "aggressions,  depredations, 
and  hostilities"  encouraged  and  maintained  "by  the  Government  of 
France,"  and  which  it  does  not  describe  as  war. 

The  decision  of  the  Supreme  Court  therefore  goes  to  this  extent 
and  no  more,  that  for  the  purpose  of  a  recovery  of  salvage  France 
was  an  enemy  to  the  extent  the  acts  of  Congress  prescribed. 

It  has  been  urged  that  the  treaty  of  1800  was  a  solemn  adjudica- 
tion of  the  claims  adverse  to  this  Government,  but  we  are  of  opinion 
not  only  that  this  position  is  negatived  by  the  treaty  itself,  but  that  the 
negotiations  which  preceded  that  contract,  and  which  may  very  prop- 
erly be  referred  to  for  explanation  if  there  be  ambiguity  in  the  docu- 
ment, do  not  support  such  a  contention.  Those  negotiations  having 
been  commented  upon  by  us  heretofore,  we  need  not  now  repeat  them, 
while  as  to  the  expunged  second  article  of  the  treaty,  that  upon  which 
this  contention  hangs,  it  is  sufficient  to  note  the  statement  that  as  the 
ministers  were  "not  able  to  agree  respecting"  the  treaties  of  1778  and 
1788,  nor  upon  the  indemnities  "mutually  due  and  claimed,  the  par- 
ties will  negotiate  further  on  these  subjects  at  a  convenient  time." 
Meanwhile  the  treaties  are  to  have  no  effect  and  the  relations  of  the 
countries  are  to  be  governed  by  the  treaty  of  1800. 

The  claims  made  by  France,  for  which  the  United  States  offered 
millions  of  francs  for  release,  were  national,  and  were  based  upon  the 
provisions  of  the  treaties  of  1778.  The  claims  for  indemnity  which 
we  had  constantly  urged,  and  whose  pa5Tnent  Pickering  demanded 
as  an  ultimatum,  were  what  are  known  as  the  "spoliations  claims." 
In  the  entire  negotiation,  as  we  have  shown  in  our  former  opinions, 
French  claims  based  upon  treaty  obligations,  past  and  future,  were 
set  up  against  American  claims  for  illegal  seizures,  condemnations, 
and  confiscations. 

To  be  sure,  Pickering  makes  a  passing  mention  of  national  claims 
on  the  part  of  the  United  States,  adding  that,  as  national  claims  may 
probably  be  less  definite  than  those  of  individuals,  and  consequently 
more  diflficult  to  adjust,  "national  claims  may  on  both  sides  be  relin- 


GUSHING  V.  UNITED  STATES  329 

quished."  (Doc.  102,  p.  566.)  An  examination  of  the  negotiations 
will  show  that  such  claims  on  our  side  were  not  pressed,  while  on  the 
French  side  they  were  strongly  urged. 

Nowhere  is  the  contention  more  concisely  formulated  than  in  the 
communication  of  J.  Bonaparte  and  his  colleagues  to  the  American 
Commissioners,  wherein  the  French  ultimata  are  set  forth  in  this  form : 
"Either  the  ancient  treaties,  with  the  privileges  resulting  from  priority 
and  the  stipulation  of  reciprocal  indemnities,  or  a  new  treaty  assuring 
equality  without  indemnity."     (Doc.  102,  p.  618.) 

"At  the  opening  of  the  negotiations,"  said  the  Secretary  of  State  to 
the  American  ministers,  "you  will  inform  the  French  ministers  that 
the  United  States  expect  from  France,  as  an  indispensable  condition 
of  the  treaty,  a  stipulation  to  make  to  the  citizens  of  the  United  States 
full  compensation  for  all  losses  and  damages  which  they  shall  have 
sustained  by  reason  of  irregular  or  illegal  captures  or  condemnations 
of  their  vessels  and  other  property  under  color  of  authority  or  com- 
missions from  the  French  Republic  or  its  agents"  (Doc.  102,  p.  562)  ; 
and  he  closed  this  instruction  with  several  points  "to  be  considered 
as  ultimata,"  the  first  of  which  was :  "That  an  article  be  inserted  for 
establishing  a  board,  with  suitable  powers  to  hear  and  determine  the 
claims  of  our  citizens  for  the  causes  hereinbefore  expressed,  and  bind- 
ing France  to  pay  or  secure  payment  of  the  sums  which  shall  be 
awarded,"  while  the  second  point  prohibited  recognition  of  the  old 
treaties. 

There  never  was  a  substantial  retreat  on  either  side  from  these 
absolutely  diverse  positions,  although  there  was  considerable  vacilla- 
tion, until  finally,  in  a  spirit  of  patriotism,  the  representatives  of  the 
United  States,  abandoning  Mr.  Pickering's  ultimata,  consented  to  leave 
the  question  still  open,  as  it  is  found  in  the  second  article  of  the 
treaty.  That  article,  in  terms,  admits  that  there  existed  diflFerences  as 
to  the  treaties  of  1778,  and  in  terms  it  states  that  indemnities  are 
"mutually  due  and  claimed."  If  indemnities  are  mutually  "due"  and 
indemnities  are  mutually  "claimed,"  the  instructions  and  the  negotia- 
tions prior  to  the  treaty  should  show  what  those  "due"  and  "claimed" 
indemnities  are.  They  do  show  that  upon  one  side  they  were  claims 
for  national  indemnity  under  treaty  obligations ;  on  the  other  side, 
claims  for  indemnity  for  spoliations.  As  the  treaty  states  that  indem- 
nities are  "claimed,"  and  as  it  states  that  indemnities  are  "due,"  Ave 
can  not  agree  that  it  operates  as  an  adjudication  of  those  claims  upon 
which  the  indemnities  are  founded. 


330  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  jurisdictional  act  also  negatives  this  assumption  in  its  direction 
that  we  shall  examine  valid  claims  arising  out  of  certain  acts  com- 
mitted prior  to  the  ratification  of  the  treaty  of  1800,  thus  negativing 
so  far  as  this  court  is  concerned  any  possible  final  adjudication  by  that 
international  agreement.  The  statute  instructs  us  not  to  investigate 
claims  now  valid  against  France,  or  claims  which  citizens  now  have 
against  France,  but  valid  claims  which  citizens  "had"  against  France 
and  which  arose  out  of  certain  illegal  acts  committed  prior  to  the 
treaty's  ratification. 

By  the  action  of  the  President  and  Senate  on  the  one  side,  and  of 
Napoleon  on  the  other,  the  second  article  was  expunged  from  the 
treaty  upon  agreement  that  "the  two  states  renounce  the  respective 
pretensions  which  were  its  object."  Thus,  for  the  purpose  of  quieting 
the  difficulties  and  dangers  flowing  from  the  treaties  of  1778,  to  avoid 
the  French  claims,  from  which  a  release  had  been  asked  at  an  offered 
price  of  many  million  francs,  to  save  the  young  Republic  from  inter- 
nal dissension  and  from  danger  from  without,  the  American  authorities 
surrendered  to  France  the  claims  for  spoliations  upon  which  up  to 
that  moment  they  had  most  steadily  and  most  strenuously  insisted. 

The  alleged  reprisals  committed  by  this  country  upon  French  com- 
merce were  most  limited  in  their  nature,  and  hardly  amounted  to  more 
than  is  allowed  by  the  natural  law  of  self-defense — that  law  which,  by 
not  obliging  us  to  part  with  our  lives,  our  limbs,  or  our  property,  allows 
us  to  defend  our  persons  and  our  goods. 

The  reprisals  were  authorized  and  defined  by  acts  of  Congress,  the 
first  of  which  was  passed  in  June,  1798,  and  the  last  in  January,  1799. 

The  Act  of  June  25,  1798  (1  Stat.  L.  572),  authorized  "the  defense" 
of  merchant  vessels  against  "French  depredations,"  and  to  that  end 
permitted  the  merchantman  to  oppose  search,  restraint,  or  seizure  at- 
tempted by  an  armed  French  vessel,  permitted  the  merchantman  to 
repel  by  force  any  assault  by  such  a  French  vessel,  authorized  him  to 
capture  such  an  assaulting  vessel,  and  permitted  the  merchantman  to 
retake  any  other  American  merchantman  captured  by  any  armed 
French  vessel. 

The  second  section  of  this  act,  which  provided  for  salvage,  refers 
to  the  case  of  the  capture  of  a  French  "armed"  vessel,  from  which  an 
assault  or  other  hostility  "shall  be  first  made" :  and  Section  3  requires 
a  bond  from  armed  merchantmen  that  they  shall  commit  no  "unpro- 
voked violence"  against  the  vessel  of  any  nation  in  amity  with  the 


GUSHING  V.  UNITED  STATES  331 

United  States.  Finally,  the  sixth  section  directs  that  when  France 
shall  stop  the  ''lawless  depredations  and  outrages  hitherto  encouraged 
and  authorized  by  that  Government  against  the  merchant  vessels  of 
the  United  States,  and  shall  cause  the  laws  of  nations  to  be  observed," 
the  President  shall  instruct  the  merchantmen  to  submit  to  search  and 
to  refrain  from  violence. 

As  to  the  next  act,  passed  three  days  later  (1  Stat.  L.  574),  it  is 
only  necessary  to  note  that  recaptures  were  to  be  restored  after  salvage 
paid  the  recaptors,  nothing  going  to  the  Treasury.  The  9th  of  July 
following  an  act  was  passed  to  "protect  the  commerce  of  the  United 
States,"  which  authorized  the  President  to  give  private  armed  vessels 
the  same  license  and  authority  to  take  armed  vessels  of  France,  and 
to  recapture  American  vessels,  as  public  armed  vessels  of  the  United 
States  had  by  law  (1  Stat.  L.  578,  §  2)  ;  "armed"  French  vessels  cap- 
tured to  be  absolutely  forfeited  to  the  capturing  vessel,  which  should 
receive  also  just  and  reasonable  salvage  on  all  recaptures.     (§§  5,  6.) 

The  license  and  authority  given  the  public  armed  vessels  of  the 
United  States  are  found  in  the  first  section  of  this  act  of  9th  July, 
1798,  and  also  in  a  prior  act  entitled  "An  act  more  effectually  to  pro- 
tect the  commerce  and  coasts  of  the  United  States,"  approved  May  28, 
1798  (1  Stat.  L.  561),  which  permitted  the  seizure  only  of  such 
French  armed  vessels  as  had  committed,  or  were  hovering  on  our 
coasts  for  the  purpose  of  committing,  depredations  on  vessels  belong- 
ing to  citizens  of  the  United  States,  and  also  permitted  the  recapture 
of  American  vessels  seized  by  the  French.  The  act  of  July  went  fur- 
ther than  this,  and  authorized  the  President  to  instruct  the  commanders 
of  public  armed  vessels  to  "subdue,  seize,  and  take  any  armed  French 
vessel  which  shall  be  found  within  the  jurisdiction  of  the  United 
States,  or  elsewhere  on  the  high  seas."  The  authority,  therefore,  given 
to  armed  merchantmen  by  this  statute  was  to  subdue,  seize,  and  take 
anv  French  "armed"  vessel,  and  to  recapture  any  American  vessel. 

These  statutes  seem  to  us  not  only  defensive  in  their  character,  but 
also  marked  by  self-restraint  and  calm  judgment.  Notwithstanding 
the  persistent  attacks  by  France  upon  the  American  mercantile  marine, 
no  permission  is  given  in  this  legislation  to  injure  French  commerce; 
armed  vessels  only  are  to  be  seized,  and  American  vessels  may  be  re- 
captured; peaceable  French  merchantmen  may  pursue  their  voyages 
unmolested. 

A  system  of  reprisals  goes  further  than  this,  for  it  is  based  upon  the 


332  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

principle  of  compensation,  and  is  aggressive,  not  defensive,  in  spirit 
and  intent. 

Reprisals  [says  Vattel,  lib.  2,  p.  342]  are  used  between  nation 
and  nation  to  do  justice  to  themselves  when  they  can  not  other- 
wise obtain  it.  If  a  nation  has  taken  possession  of  what  belongs 
to  another;  if  it  refuses  to  pay  a  debt,  to  repair  an  injury,  to  make 
a  just  satisfaction,  the  other  may  seize  what  belongs  to  it  and 
apply  it  to  its  own  advantage,  till  it  has  obtained  what  is  due  for 
interest  and  damage,  or  keep  it  as  a  pledge  until  full  satisfaction 
has  been  made.  In  the  last  case  it  is  rather  a  stoppage  or  a  seiz- 
ure than  reprisals,  but  they  are  frequently  confounded  in  common 
language. 

Dr.  Woolsey  says  reprisals  consist  in  recovering  what  is  our  own  by 
force,  then  in  seizing  an  equivalent.  We  do  not  attempt  to  lay  down 
any  general  rule  of  law  on  this  question  of  reprisals,  but  a  study  of 
the  authorities  leads  to  the  conclusion  that  the  action  is  afBrmative 
and  aggressive  in  character,  having  for  its  object  compensation.  The 
essence  of  reprisals  has  been  said  to  be  security — that  is,  the  seizure 
of  property  for  protection  until  just  claims  are  settled,  but  we  do  not 
see  that  the  principle  of  compensation  is  thereby  changed,  as  the 
seizure  of  property  for  security  must  be  directed  by  an  effort  to  obtain 
security  sufficient  in  amount  to  provide  compensation  should  the  de- 
mand for  redress  be  unsuccessful. 

The  statutes  we  have  cited  have  no  such  object ;  they  are  not  aggres- 
sive in  their  provisions  or  in  the  power  they  give,  but  entirely  defen- 
sive, except  in  the  instance  of  seizing  armed  vessels  or  retaking  cap- 
tured American  vessels.  The  aim  of  the  statute  is  defense  of  our 
merchantmen,  not  depredations  upon  the  commerce  of  France,  not  com- 
pensation to  the  United  States  for  losses  already  incurred,  not  security 
for  demands  heretofore  made,  but  protection  and  safety  in  the  future. 
It  seems  to  us,  therefore,  that  these  acts  lack  the  essential  elements  of 
statutes  of  reprisals.  Two  suggestions  occur  to  us  in  concluding  this 
point.  If  there  were  a  state  of  war  or  a  state  of  reprisals  existing, 
why  should  distressed  French  vessels  be  allowed  to  refit  and  provision 
in  our  ports  as  they  were  by  the  express  provisions  of  the  Act  of  Janu- 
ary 30,  1799  (1  Stat.  L.  614)  ?  The  Government  of  the  United  States 
could  not  have  considered  that  it  was  at  war,  or  that  a  state  of 
reprisals  existed,  for  the  instructions  of  Mr.  Pickering,  the  Secretary 
of  State,  and  the  mouthpiece  of  the  Government,  entirely  negative 
such  a  supposition.     (Doc.  102,  pp.  561  et  seq.) 


GUSHING  V.  UNITED  STATES  333 

111  the  face  of  these  statutes  the  seizure  of  a  merchant  vessel  can 
not  be  justified  on  the  one  ground  that  she  was  armed;  and  more 
especially  is  this  true  as  to  seizures  during  the  period  when  these  claims 
arose,  a  period  when,  to  guard  against  the  pirates  of  the  Caribbean, 
of  the  Malay  Archipelago,  or  of  the  Algerine  coast,  it  was  customary 
for  merchant  vessels  to  carry  some  armament. 

The  laws  of  neutrality  and  nations,  in  no  instance  that  I  know 
of  [says  Judge  Bee,  in  1795,  while  holding  the  District  Court  of 
South  Carolina],  interdict  neutral  vessels  from  going  to  sea 
armed  and  fitted  for  defensive  war.  All  American  Indiamen  are 
armed,  and  it  is  necessary  they  should  be  so.  .  .  .  When  the 
wisdom  of  Congress  substituted  an  embargo  for  a  declaration  of 
hostilities,  preparations  of  this  sort  might  have  been  seen  in 
every  State  in  the  Union.  From  the  instructions  and  circular 
letter  to  the  different  collectors,  it  was  clear  that  the  vessels  of 
the  belligerent  powers  alone  were  comprehended  in  the  restric- 
tions. Even  they  might  arm  for  defense;  and  if,  as  respected 
French  vessels,  it  should  appear  doubtful  whether  their  equip- 
ment was  applicable  to  war  or  commerce,  such  equipment  was 
declared  lawful. 

Each  case  before  the  court  must  of  course  be  examined  separately 
upon  the  facts  peculiar  to  it,  and  it  is  not  impossible  that  such  facts 
may  be  shown  as  to  some  of  the  private  armed  vessels  of  the  United 
States  as  justified  their  seizure  and  condemnation. 

The  vessels  whose  cases  are  now  decided  were  either  unarmed  or 
were  armed  for  strictly  defensive  purposes. 

The  jurisdictional  act  requires  us  to  inquire  into  illegal  condemna- 
tions, and  it  is  urged  on  behalf  of  the  defendants  that  all  condemna- 
tions by  the  French  courts  are  final  and  conclusive  upon  this  court  if 
the  French  court  had  jurisdiction.  Many  citations  are  made  in  sup- 
port of  this  contention,  among  them  the  case  of  Baring  and  others  v. 
The  Royal  Exchange  Assurance  Company  (5  East.  99  et  seq.),  which 
may  be  taken  as  a  fair  illustration. 

The  American  ship  Rosanna,  insured  by  the  defendants,  was  cap- 
tured and  condemned  by  the  French,  whereupon  plaintiffs  sued  on 
the  policy  and  recovered.  Lord  Ellenborough,  Gi.  J.,  interrupting  the 
argument,  said : 

Does  not  this  [French]  sentence  of  condemnation  proceed  spe- 
cifically on  the  ground  of  infraction  of  treaty  between  America 


334  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

and  France  in  the  ship  not  having  those  documents  with  which  in 
the  judgment  of  the  French  court  the  American  was  bound  by 
treaty  to  be  provided  ?  I  do  not  say  that  they  have  construed  the 
treaty  rightly ;  on  the  contrary,  suppose  them  to  have  construed 
it  ever  so  iniquitously ;  yet,  having  competent  jurisdiction  to  con- 
strue the  treaty,  and  having  professed  to  do  so,  we  [the  court] 
are  bound  by  that  comity  of  nations  which  has  always  prevailed 
amongst  civilized  states  to  give  credit  to  their  adjudication  where 
the  same  question  arises  here  upon  which  the  foreign  court  has 
decided.  After  arguing  for  hours,  we  must  come  to  the  same  con- 
clusion at  last,  that  the  French  court  has  specifically  condemned 
the  vessel  for  an  infraction  of  treaty  which  negatives  the  war- 
ranty of  neutrality.  Then,  having  distinctly  adjudged  the  vessel 
to  be  good  prize  upon  a  ground  within  their  jurisdiction,  unless 
we  deny  their  jurisdiction,  we  are  bound  to  abide  by  that  judg- 
ment. Whenever  a  case  occurs  of  a  condemnation  by  a  foreign 
court  on  the  ground  of  ex  parte  ordinances  only,  without  drawing 
inferences  from  them  to  show  an  infraction  of  treaty  between  the 
nation  of  the  captors  and  captured,  and  referring  the  judgment 
of  the  court  to  the  breach  of  treaty,  I  shall  be  glad  to  hear  the 
case  argued,  whether  such  ordinances  are  to  be  considered  as 
furnishing  rules  of  presumption  only  against  the  neutrality  or  as 
positive  laws  in  themselves,  binding  other  nations  propria  vigore. 

The  decision  of  the  English  court,  then,  goes  to  this  extent,  that  in 
an  action  between  individuals  the  decree  of  the  French  court  which 
had  jurisdiction  is  final;  so  would  it  also  be  final  as  to  the  vessel,  and 
the  purchaser  at  the  confiscation  sale  could  rest  upon  the  decree  as 
good  title  against  all  the  world. 

But  all  this  does  not  affect  the  position  of  the  United  States  Govern- 
ment against  the  Government  of  France. 

Lord  Ellenborough  says  that  no  matter  how  iniquitous  the  construc- 
tion given  the  treaty  by  the  French  court,  he,  as  a  judge,  is  bound 
to  follow  it.  But  so  is  not  the  Government  of  the  United  States.  That 
Govemnient  could  have  objected  either  that  the  court  was  corrupt,  or 
that  there  existed  no  treaty,  or  that  there  had  been  manifest  error 
in  construing  it.  All  such  questions  may  be  outside  the  right  of  a 
court  to  consider,  but  they  are  within  the  right  and  form  part  of  the 
duty  of  the  political  branch  of  the  Government.  If  the  French  court, 
acting  within  its  jurisdiction,  construed  the  treaty  iniquitously,  the 
courts  might  not  have  power  to  remedy  the  wrong,  but  the  owner  had 
a  right  to  appeal  to  his  Government  for  redress,  and  that  Government, 
when  convinced  of  the  justice  of  his  complaint,  was  bound  to  endeavor 
to  redress  it. 


GUSHING  V.  UNITED  STATES  335 

The  decree  is  an  estoppel  on  the  courts,  but  it  is  no  estoppel  on  the 
Government;  in  fact,  the  right  to  diplomatic  interference  arises  only 
after  the  decree  is  rendered.  Of  course,  precedents  for  cases  of  this 
kind  are  not  to  be  found  in  the  reports  of  courts,  for  no  such  case  can, 
in  the  nature  of  things,  come  before  a  court  unless  by  virtue  of  a  spe- 
cial and  peculiar  statute,  such  as  that  under  which  we  now  act;  but 
diplomatic  history  is  full  of  them. 

Rutherforth  (Institutes,  vol.  2,  ch.  9,  p.  19),  speaking  of  the  right 
of  a  state  to  proceed  in  prize,  says : 

This  right  of  a  state  to  which  the  captors  belong  to  judge  ex- 
clusively is  not  a  complete  jurisdiction.  The  captors,  who  are 
its  own  members,  are  bound  to  submit  to  its  sentence,  though  this 
sentence  should  happen  to  be  erroneous,  because  it  has  a  complete 
jurisdiction  over  their  persons.  But  the  other  parties  in  the  con- 
troversy, as  they  are  members  of  another  state,  are  only  bound  to 
submit  to  its  sentence  as  far  as  this  sentence  is  agreeable  to  the 
law  of  nations,  or  to  particular  treaties,  because  it  has  no  jurisdic- 
tion over  them  in  respect  either  of  their  persons  or  of  the  things 
that  are  the  subject  of  the  controversy.  If  justice,  therefore,  is 
not  done  them,  they  may  apply  to  their  own  state  for  a  remedy, 
which  may  consistently  with  the  law  of  nations  give  them  a  remedy 
either  by  solemn  war  or  by  reprisals.     (See  Dana's  Wheaton,  391.) 

This  brings  us  naturally  to  another  point,  admitted  as  a  general 
principle,  that  appeal  should  be  prosecuted  to  the  court  of  last  resort 
before  there  can  be  diplomatic  intervention. 

The  exceedingly  able  British-American  Commission  which  sat  in 
Washington  in  1872  not  only  unanimously  decided  that  they  had  juris- 
diction in  prize  cases  in  which  the  decision  of  the  ultimate  appellate 
tribunal  of  the  United  States  had  been  had,  a  conclusion  in  which 
even  the  agents  of  the  United  States  concurred,  but  also  that  they 
had  jurisdiction  when  the  claimant  had  not  pursued  his  remedy 
to  the  court  of  last  resort,  provided  satisfactory  reasons  were  given 
for  the  failure  to  appeal.  (Papers  relating  to  the  Treaty  of  Wash- 
ington, vol.  6,  pp.  88-90.)  To  this  last  conclusion  the  American 
Commissioner  dissented ;  but  even  he  held  that  a  misfeasance  or  de- 
fault of  the  capturing  Government,  by  which  means  an  appeal  was 
prevented,  was  sufficient  to  excuse  the  failure  to  appeal.     (Id.  92.) 

The  rights  of  the  prize  courts  are  the  rights  of  the  capturing  state. 
These  courts  are  its  agents,  deputed  by  it  to  examine  into  the  conduct 


336  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  its  own  subjects  before  becoming  answerable  for  what  they  have 
done,  and  the  right  ends  when  their  conduct  has  been  thoroughly  ex- 
amined. Therefore  the  state  has  a  right  to  require  that  the  captor's 
acts  be  examined  in  all  the  ways  which  it  has  appointed  for  this  pur- 
pose, and  on  this  principle  is  founded  the  doctrine  that  the  complain- 
ant, unless  he  exhaust  his  appeal,  shall  be  held  to  confess  the  justice  of 
the  decision.  This  presupposes,  first,  that  there  are  appellate  courts : 
second,  that  they  are  open  to  the  complainant  freely  and  honestly. 
The  captor  has  no  right  to  insist  for  his  own  protection  upon  the  ful- 
fillment of  a  form  which  he  by  his  own  acts  prevents. 

There  is  also  a  distinction,  not  often  clearly  drawn,  between  the 
validity  of  a  claim  per  se  and  the  right  to  enforcement.  The  justice  of 
the  claim  is  founded  upon  the  injustice  of  the  sentence.  The  appeal 
does  not  afifect  the  merits  of  the  claim ;  it  does  not  palliate  or  destroy 
any  wrong  done;  but  it  is  simply  a  course  provided  for  the  captor's 
protection,  that  he  may  fully  examine  into  the  acts  of  his  own  agents, 
through  his  other  agents,  the  courts. 

The  whole  proceeding,  from  the  capture  to  the  condemnation, 
is  a  compulsor}7  proceeding  in  invitum  by  the  state  in  its  political 
capacity,  in  the  exercise  of  war  powers,  for  which  it  is  respon- 
sible, as  a  body  politic,  to  the  state  of  which  the  owner  of  the 
property  is  a  citizen.     (Dana's  Wheaton,  note,  186.) 

Therefore  the  capturing  state  may  waive  such  a  demand,  and  not 
insist  upon  exhausting  its  right  to  further  investigation,  and  may  waive 
it  by  failing  to  provide  an  appellate  tribunal,  or  by  preventing  re- 
course to  it,  or  in  any  other  way  which  shows  an  intention  not  to 
insist  upon  this  right  of  examination ;  but  appeal  or  no  appeal,  the 
validity  of  the  claim  is  founded  upon  the  injustice  to  the  claimants. 

All  writers  lay  down  the  principle  that  appeal  should  be  taken  from 
the  inferior  to  the  superior  tribunal  before  resort  by  the  injured  Gov- 
ernment to  measures  of  redress ;  but  this  principle  is  always  coupled 
with  the  extreme  measures  of  war  and  reprisals  (see  Ruther forth, 
supra;  Grotius,  bk.  3,  ch.  2,  §§  4,  5),  and  there  is  no  assertion  in  the 
writers  that  illegal  capture  necessarily  does  not  found  an  international 
claim  even  when  appeal  has  not  been  taken. 

It  was  notorious  that  justice  could  not  be  obtained  in  the  French 
prize  tribunals  in  existence  at  the  time  of  those  seizures.  Mr.  Picker- 
ing, writing  to  Mr.  Pinckney  in  April,  1797,  said: 


GUSHING  V.  UNITED  STATES  337 

The  report  of  Mr.  Mountflorence,  which  you  transmitted,  shows 
that  the  merchants  in  the  ports  of  France  who  constitute  the 
tribunal  of  commerce  in  which  our  captured  vessels  are  tried  and, 
on  the  most  frivolous  and  shameful  pretenses,  condemned,  are 
often,  if  not  commonly,  owners  of  the  privateers  on  whose  prizes 
they  decide.     (Doc.  102,  p.  165.) 

Consuls  were  at  one  time  forbidden  to  appear  before  the  tribunals 
in  defense  of  absent  owners.  (Prises  Maritimes,  vol.  2,  pp.  317 
et  seq.) 

Soon  [says  Cauchy],  upon  the  occasion  of  the  rupture  with  En- 
gland, the  signal  was  given  for  privateering.  The  French  gave 
to  it  all  that  could  encourage  speculations  half  mercantile,  half 
warlike ;  they  put  at  the  disposition  of  the  owners  part  of  the 
sailors  of  the  fleet,  even  to  strangers  and  neutrals ;  they  opened  to 
them  the  storehouses  of  the  state ;  they  abandoned  to  the  captors 
the  total  product  of  the  captures,  and  they  joined  to  that  in  cer- 
tain cases  premiums  and  rewards.  They  did  more;  they  abolished 
with  the  offices  of  the  admiralty  the  tribunal  of  prizes,  and,  in 
order  to  find  judges  more  ready  to  sanction  captures,  they  con- 
ferred upon  the  tribunals  of  commerce  and  of  the  district  the 
judgment  of  these  matters. 

It  was  erroneously  that  they  had  represented  the  benefits  of 
privateering  as  a  source  of  riches  and  public  prosperity.  In  order 
to  make  the  fortunes  of  four  or  five  ports,  the  privateers  were  re- 
ducing the  whole  of  France,  a  country  by  nature  agricultural  and 
industrial,  so  that  she  had  neither  raw  materials  for  manufactures 
nor  supplies  for  her  navy,  nor  outlets  for  her  products,  for  they 
kept  away  from  our  ports  the  neutral  vessels  which  could  alone 
supply  the  total  absence  of  vessels  sailing  under  the  French  flag. 

On  the  other  hand,  were  not  the  relations  of  the  Republic  with 
foreign  Governments  at  the  mercy  of  simple  judges  of  com- 
merce or  of  district,  imprudently  invested  by  the  law  with  the 
terrible  right  to  put  France  in  a  state  of  war  against  the  wish  and 
knowledge  of  her  Government?  The  Directory  concluded  that 
privateering,  instead  of  receiving  more  extension  and  favor, 
ought  to  be  restrained  and  regulated  by  law. 

But  this  progress,  foreseen  under  the  Directory,  was  not  to  be 
accomplished  until  after  its  fall.  {Le  Droit  Maritime  Internor- 
tional,  Eugene  Cauchy,  Paris,  1862,  vol.  2,  pp.  317,  318,  323-325.) 

The  council  of  prizes,  which  was  the  supreme  court  of  appeal 
in  prize  matters,  was  abolished  in  1793.  The  29th  Genninal,  year 
IV,  the  Council  of  Five  Hundred  passed  a  resolution  thus  ex- 
pressed :  "The  appeals  from  the  tribunals  of  commerce  in  mat- 
ters of  prize  shall  be  carried  to  the  tribunals  of  the  departments." 


338  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

.  .  .  Carried  to  the  Council  of  the  Ancients,  this  resolution 
was  not  opposed,  and  the  8th  Floreal,  year  IV,  it  was  converted 
into  law.  One  only  remembers  too  well  (adds  M.  Merlin)  how 
disastrous  were  the  results  of  this  strange  legislation.  The  tribu- 
nals paid  no  attention  in  their  decrees  to  the  relation  of  France 
with  foreign  powers,  whence  arose  numerous  and  pressing  claims. 
However,  to  palliate  the  political  inconvenience  that  might  flow 
from  thus  vesting  ordinary  tribunals  with  the  cognizance  of  mari- 
time prizes,  it  was  thought  sufficient  to  authorize  the  commissaries 
near  the  civil  tribunals  to  refer  to  the  Government  those  matters 
which  necessitated  the  interpretation  of  treaties,  and  in  which 
the  judgments  of  the  tribunals  might  compromise  the  rights  of  a 
friendly  or  neutral  power;  but  experience  was  not  long  in  dem- 
onstrating that  this  palliation  was  a  vain  remedy,  and  that  the 
legislation  ought  to  be  deeply  modified,  the  tribunals  having  shown 
the  greatest  hostility  against  the  measure,  some  determining  in 
spite  of  it  the  causes  which  the  commissaries  had  referred  to  the 
Executive  Directory ;  others  denying  to  the  commissaries  of  the 
Government  the  right  to  judge  alone  of  the  propriety  or  necessity 
of  the  reference.  Matters  had  come  to  such  a  point  that  in  the 
year  VIII  the  minister  of  justice,  Cambaceres,  being  instructed 
by  the  Consuls  as  to  the  amendments  to  be  made  to  the  legislation 
as  to  prizes,  was  authorized  to  say  "that  privateering  had  become 
a  system  of  brigandage,  because  the  laws  which  had  been  applied 
to  it  were  insufficient  and  bad ;  that  they  had  heard  complaints 
raised  in  all  directions  by  merchants  and  foreign  ministers,  and 
that  nevertheless  the  Government,  convinced  of  the  justice  of  these 
complaints,  had  always  been  without  power  to  do  right." 
(Traite  des  Prises  maritimes,  par  Pistoye  et  Duverdy,  Paris,  1858, 
vol.  2,  pp.  157,  158.) 

The  form  and  expense  of  appeal  were  useless,  for  it  was  not  denied 
that  the  adjudications  below  were  in  accordance  with  French  ordi- 
nances, while  it  was  contended  that  they  were  in  violation  of  the  rights 
of  neutrals,  measured  either  by  treaty  provision  or  by  the  precepts  of 
the  law  of  nations.  Municipal  law  is  not  a  measure  of  international 
reponsibility,  but  it  is  binding  within  the  jurisdiction  of  the  state  upon 
all  its  subordinate  agents,  including  the  courts.  The  decree  in  one  of 
the  cases  before  us,  which  was  appealed  to  the  civil  tribunal,  shows  the 
following  as  the  grounds  for  affirming  the  condemnation  below: 

The  tribunal  .  .  .  considering  the  rules  of  1704,  1744, 
1778,  prior  as  well  as  subsequent  to  the  treaty  between  France 
and  the  United  States  of  America,  emphatically  demand  that  all 


GUSHING  V.  UNITED  STATES  339 

foreign  ships  shall  be  furnished  with  a  role,  authenticated  by  the 
public  officers  of  the  neutral  port  whence  they  have  set  out,  under 
pain  of  being  good  prize.  Considering  that  the  execution  of 
these  regulations  has  been  ordered  by  article  5  of  the  law  of  the 
14th  of  February,  1793;  considering  that  a  ship,  which  can  not  be 
reputed  neutral  on  account  of  a  lack  of  papers  sufficient  to  prove 
its  neutrality,  can  not  be  regarded  but  as  an  enemy,  and,  being  so, 
its  cargo  is  to  be  confiscated,  according  to  the  terms  of  article  7 
of  the  ordinance  of  the  marine  of  1681 — title  prize — says  that  it 
has  been  well  judged  by  the  judgment  which  has  been  appealed 
from,  and  orders  that  it  shall  have  its  full  and  entire  effect. 

So  it  appears  that  questions  of  treaty  or  international  law  were  not 
ruled  upon,  the  court  being  guided  alone  by  the  statutes  of  France. 
In  the  face  of  precedents  of  this  kind  an  appeal  was  a  vain  and  ex- 
pensive form,  as  an  affirmation  of  the  judgment  below  necessarily 
must  follow.  The  cases  were  class  cases,  the  condemnations  (so  far 
as  we  have  yet  seen)  proceeded  upon  substantially  the  same  grounds, 
and  one  appeal  was  decisive  of  all  similar  cases.  The  state's  right  of 
investigation  had  therefore,  in  effect,  been  satisfied  when  it  had  af- 
firmed in  one  case  the  legal  principles  applicable  to  many  others  pre- 
senting the  same  facts. 

There  were  appeals  also  to  the  court  of  cassation,  which  were  de- 
cided adversely  to  the  claimant — necessarily  so  decided  when  the  char- 
acter and  duty  of  the  court  are  understood. 

When  the  jurisdiction  of  the  court  of  cassation  is  invoked  there 
must  take  place  a  preliminary  argument  to  determine  whether  the 
court  under  the  particular  facts  of  the  case  has  or  has  not  jurisdiction. 
This  settled  in  the  affirmative  by  one  of  the  divisions  of  the  court 
known  as  the  chamber  of  requests,  the  cause  is  referred  either  to  the 
chamber  of  civil  causes,  or  to  the  chamber  of  criminal  causes,  and 
the  jurisdiction  of  these  chambers  is  simply  to  secure  uniformity  in  the 
construction  of  the  statutes.    Merlin  says  : 

As  resource  to  the  cassation  is  only  an  extreme  remedy  which 
has  no  other  object  than  the  maintenance  of  the  legislative  au- 
thority and  of  the  ordinances,  it  can  not  be  made  use  of  under 
the  simple  pretext  that  a  case  has  been  ill-judged  in  the  main. 

The  opinion  of  the  council  of  state,  dated  January  18,  1806,  speaking 
of  the  court  of  cassation,  says: 


340  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

If  the  forms  have  been  violated  [below]  there  is  no  judgment, 
properly  speaking,  and  the  court  of  cassation  destroys  an  irregu- 
lar decree.  If,  on  the  contrary,  all  the  forms  have  been  observed, 
the  judgment  is  reputed  to  be  truth  itself.  ...  If,  then, 
a  decree  should  be  in  formal  opposition  to  a  written  provision  of 
the  law,  the  presumption  of  its  justice  disappears,  for  the  law  is 
and  ought  to  be  the  justice  of  the  tribunals;  wherefore  the  court 
of  cassation  has  the  right  to  annul  in  this  case  the  decrees  of  the 
courts.     (See  Merlin,  Repertoire.     .     .     .     de  Jurisprudence.) 

What,  then,  could  be  the  object  of  an  appeal  to  the  court  of  cassa- 
tion when  the  court  below  had  not  misinterpreted  the  French  law, 
especially  as  such  an  appeal  would  in  no  event  have  suspended  the 
execution  of  the  judgment?  (Code,  art.  16,  title.  Courts  and  tribunals 
(1790),  Tripier's  edition,  1865.) 

The  condition  of  affairs  in  regard  to  French  courts  is  well  illustrated 
(by  the  letter  from  Pinckney,  Marshall,  and  Gerry  to  the  Secretary 
of  State  (October  22,  1797,  Doc.  102,  p.  467),  wherein  they  quote 
their  advocate  as  saying:  "It  is  obvious  that  the  tribunal  have  re- 
ceived instructions  from  the  officers  of  the  Government  to  hasten 
their  decisions,  and  that  it  was  hardly  worth  while  to  plead,  for  all  our 
petitions  in  cassation  would  be  rejected." 

In  the  colonies  matters  were  still  worse  than  in  France  (Tuck's  Re- 
port, and  citations  therein,  H.  R.  Ex.  Doc.  194,  49th  Cong.,  1st  sess.) 
and  appeals  were  much  more  difficult.  After  the  decision  of  a  court, 
organized  in  some  instances  for  the  purpose  of  condemnation,  by  an 
officer  of  the  Government,  himself  interested  in  privateers,  or  in  some 
instances  after  a  decision  by  that  officer  in  person  (id.,  p.  9),  the  only 
remedy  was  to  obtain  an  appeal  to  the  mother  country.  This  trouble 
and  expense  were  practically  useless  (see  in  this  relation  Skipwith  to 
Berlier,  Doc.  102,  pp.  833.  834).  Communication  between  France  and 
the  colonies  was  difficult;  the  masters  of  the  seized  vessels  were  poor 
and  were  often  stripped  by  the  privateers  of  what  little  they  had. 

The  condition  of  French  prize  tribunals  was  so  notorious  as  to  cause 
a  change  in  admiralty  law,  the  reasons  for  which  were  thus  expressed 
by  Lord  Stowell: 

It  has  certainly  been  the  practice  of  this  court,  lately,  to  grant 
salvage  on  recapture  of  neutral  property  out  of  the  hands  of  the 
French,  and  I  see  no  reason  at  the  present  moment  to  depart  from 
it.    I  know  perfectly  well  that  it  is  not  the  modern  practice  of  the 


GUSHING  V.  UNITED  STATES  341 

law  of  nations  to  grant  salvage  on  recapture  of  neutral  vessels, 
and  upon  this  plain  principle,  that  the  liberation  of  a  clear  neu- 
tral from  the  hand  of  the  enemy  is  no  essential  service  rendered 
to  him,  inasmuch  as  that  same  enemy  would  be  compelled  by  the 
tribunals  of  his  own  country,  after  he  had  carried  the  neutral  into 
port,  to  release  him,  with  costs  and  damages  for  the  injurious 
seizure  and  detention.  This  proceeds  upon  the  supposition  that 
those  tribunals  would  duly  respect  the  obligations  of  the  law  of 
nations;  a  presumption  which,  in  the  wars  of  civilized  nations, 
each  belligerent  is  bound  to  entertain  in  their  respective  dealings 
with  neutrals.  But  it  being  notorious  to  all  Europe,  in  the  present 
war,  that  there  has  been  a  constant  struggle  maintained  between 
the  governing  powers  of  France,  for  the  time  being,  and  its  mari- 
time tribunals,  which  should  most  outrage  the  rights  of  neutral 
property — the  one  by  its  decrees,  or  the  other  by  its  decisions — 
the  liberation  of  neutral  property  out  of  their  possession  has  been 
deemed,  not  only  in  the  judgment  of  our  courts,  but  in  that  of 
neutrals  themselves,  a  most  substantial  benefit  conferred  upon 
them,  in  a  delivery  from  danger  against  which  no  clearness  and 
innocence  of  conduct  could  afford  any  protection.  And  a  salvage 
for  such  service  has  not  only  been  decreed,  but  thankfully  paid, 
ever  since  these  wild  hostilities  have  been  declared  and  prac- 
ticed by  France,  against  all  acknowledged  principles  of  the  law 
of  nations  and  of  natural  justice.  When  these  lawless  and  ir- 
regular practices  are  shown  to  have  ceased,  the  rule  of  paying  sal- 
vage for  the  liberation  of  neutral  property  must  cease  likewise. 
No  proof  is  offered  that  the  maritime  tribunals  of  France 
have,  in  any  degree,  corrected  either  the  spirit  or  the  form  of  their 
proceedings  respecting  neutral  property  generally ;  and,  therefore, 
I  shall  not  think  myself  authorized  to  depart  from  the  practice 
that  has  been  pursued,  of  awarding  a  salvage  to  the  captors.  {The 
Onskan,  2  Robinson,  300,  301.) 

And  later  he  said : 

It  is  certainly  true  that  the  standing  doctrine  of  the  court  has 
been  that  neutral  property,  taken  out  of  the  possession  of  the 
enemy,  is  not  liable  to  salvage.  It  is  the  doctrine  to  which  the 
court  has  invariably  adhered  till  it  was  forced  out  of  its  course 
by  the  notorious  irregularities  of  the  French  cruisers  and  of  the 
French  Government,  which  proceeded,  without  any  pretense  of 
sanction  from  the  law  of  nations,  to  condemn  neutral  property. 
On  these  grounds  it  was  deemed  not  unreasonable  by  neutrals 
themselves  that  salvage  should  be  paid  for  a  deliverance  from 
French  capture.  The  rule  obtained  early  in  the  war,  and  has 
continued  to  the  present  time.     It  is  said  that  a  great  alteration 


342  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

has  taken  place  in  the  French  proceedings,  and  that  we  are  now 
to  acknowledge  a  sort  of  return  of  "Saturnia  Regna."  This 
court  is  not  informed,  in  a  satisfactory  manner,  that  any  such 
beneficial  change  has  taken  place  in  the  administration  of  prize 
law  in  the  tribunals  of  France;  and,  therefore,  it  will  continue 
to  make  the  same  decree  till  the  instructions  of  the  superior  court 
shall  establish  a  different  rule.     {Eleonora  Catharina,  4  Rob.  157.) 

It  is  important  to  note  that  during  the  period  of  these  seizures  neither 
the  Government  of  the  United  States,  which  consistently  supported 
the  claimants'  contentions,  nor  the  Government  of  France,  from  whom 
we  were  demanding  redress,  indicated  the  necessity  of  the  form  of 
appeal,  nor  later  did  the  French,  even  in  the  long  negotiations  in  which 
the  validity  of  these  claims  was  a  principal  subject  of  discussion, 
intimate  in  any  way  that  they  considered  the  appeal  of  importance  or 
that  they  required  it. 

We  conclude,  therefore,  that  under  these  exceptional  circumstances 
a  claim  properly  founded  in  law  is  not  excluded  from  our  jurisdiction 
because  the  supposed  remedy  by  appeal  was  not  exhausted,  and  this 
we  hold  upon  two  principal  grounds :  First,  that  by  the  action  of  the 
French  Government  such  an  appeal  was  useless  or  impracticable ; 
second,  that  as  between  the  United  States  and  France  such  an  appeal 
as  a  condition  precedent  to  recovery  was  in  effect  waived. 

The  decree  condemning  the  Industry  proceeds  upon  the  theory  that 
the  vessel's  role  d'equipage  was  not  in  the  form  said  to  be  required 
by  article  25  of  the  treaty  of  February  6,  1778,  and  also  said  to  be  re- 
quired by  certain  French  decrees  declaring  to  be  good  and  lawful 
prize  every  American  vessel  not  having  a  role  in  a  form  prescribed. 

Colloquially  a  role  d'equipage  is  usually  treated  as  a  crew  list, 
whereas  in  French  law  it  is  a  more  foirmal  paper,  with  more  extended 
requirements. 

To  the  first  of  the  propositions  contained  in  the  court's  decree  a 
very  clear  answer  is  found  in  the  fact  that  the  treaty  does  not  demand, 
as  we  have  already  decided,  that  a  crew  list  of  any  kind  be  carried 
on  the  vessel.  Article  25  of  that  instrument  calls  for  a  "letter  or 
passport  expressing  the  name,  property,  and  bulk  of  the  ship,  as  also 
the  name  and  place  of  habitation  of  the  master  or  commander  of  the 
said  ship,  that  it  may  appear  thereby  that  the  ship  really  and  truly 
belongs  to  the  subjects  of  one  of  the  parties ;"  this  passport  to  follow 
a  form  annexed  to  the  treaty.    The  ship  was  also  to  have  a  certificate 


GUSHING  V.  UNITED  STATES  343 

as  to  cargo,  showing  she  was  not  carrying  contraband ;  but  this  certifi- 
cate is  not  brought  in  question  in  these  cases.  The  treaty  therefore 
required  two  documents :  First,  a  passport ;  second,  a  certificate  as  to 
cargo.     The  form  of  passport  annexed  to  the  treaty  runs  as  follows : 

The  name  of  the  master  and  the  name,  hailing  port,  and  ton- 
nage of  the  vessel  are  given,  together  with  the  name  of  the  port 
in  which  she  is  lying,  as  well  as  that  of  the  port  to  which  she  is 
bound ;  the  general  nature  of  her  cargo  is  described,  and  it  is  made 
known  and  certified  that  permission  has  been  given  the  master 
to  proceed  after  he  shall  make  oath  that  the  vessel  belongs  to  one 
or  more  American  citizens. 

Up  to  this  point,  therefore,  the  passport's  requirement  is  a  descrip- 
tion of  the  vessel  and  cargo,  with  the  name  of  the  master  and  a  sworn 
statement  as  to  the  citizenship  of  the  owners.  Up  to  this  point  also 
the  doomient  follows  exactly  article  25  of  the  treaty,  contains  every- 
thing demanded  by  that  article,  and  we  are  informed  that  it  was  the 
custom  of  tlie  United  States  in  the  English  version  of  the  passport 
to  halt  at  this  point,  while  the  versions  in  foreign  languages  contained 
the  concluding  portion,  which  we  are  now  about  to  consider.  (See 
original  sea-letter  of  the  Zebra;  claim  allowed  under  treaty  of  1831 ; 
original  MSS.  Department  of  State.) 

The  master  "will,"  it  says  further,  keep  the  marine  ordinances  on 
board,  in  every  port  he  "shall"  show  his  sea-letter,  "shall"  give  a 
faithful  account  of  his  voyage,  and  "shall"  carry  tlie  colors  of  his 
country;  and  he  shall  (or  will)  enter  in  the  proper  office  (reniettra) 
what: — "a  list,  signed  and  witnessed,  containing  the  names  and  sur- 
names, the  places  of  birth  and  abode  of  the  crew  of  his  ship  and  of  all 
who  shall  embark  on  board  her,  whom  he  shall  not  take  on  board 
without  the  knowledge  and  permission  of  the  officers  of  the  marine." 

There  is  no  requirement  here  that  the  master  shall  carry  on  his 
vessel  the  document  described,  be  it  role  d'equipage  or  crew  list.  The 
demand  of  this  clause  is  that  such  a  document  be  deposited  or  filed 
{remis)  in  a  proper  place,  and  whether  this  be  done  before  or  after 
the  passport  issue  is  not  material.  That  instrument  simply  declares 
that  such  a  list  has  been,  or  at  least  will  be.  before  sailing  properly 
filed,  not  carried.  (Doc.  102,  pp.  467  and  564;  2  Prises  Maritimes, 
53.) 

The  provision  of  Article  IX  of  the  treaty  of   1788,  relating  as  it 


344  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

does  to  consular  rights  in  the  arrest  of  deserting  seamen,  has  no  bear- 
ing upon  this  question.  A  semi-extraterritorial  power  is  by  that  in- 
strument given  to  French  consular  officers,  and  a  way  strictly  marked 
out  in  which  they  shall  pursue  it;  to  arrest  a  deserter  they  must  show 
him  to  be  part  of  the  vessel's  crew,  and  this  they  must  do  by  exhibiting 
"the  registers  of  the  vessel  or  ship's  roll."  This  is  a  specific  agreement 
relating  to  a  specific  subject,  and  has  no  reference  to  condemnations. 

The  Industry  was  not  condemned  because  the  crew  list  had  not 
been  filed  in  the  home  port,  but  because  the  role  d'equipage  was  not 
in  form.  The  careful  study  and  patient  research  of  Government  coun- 
sel have  failed  to  develop  any  treaty  requirement  that  such  a  docu- 
ment be  carried  on  board  the  vessel,  while  the  United  States  Govern- 
ment constantly  and  most  peremptorily  insisted  that  during  all  the 
period  now  under  discussion  the  French  demand  was  illegal  and  unau- 
thorized by  treaty  or  other  law.  The  Pinckney  mission  told  M.  Bel- 
lamy in  October,  1787  (Doc.  102,  pp.  466,  467),  that  none  of  our  ves- 
sels had  such  a  role;  and  that  if  they  were  to  surrender  the  property 
taken  from  their  fellow-citizens  in  cases  where  the  vessel  was  not  fur- 
nished with  such  a  role  the  United  States  would  become  responsible 
for  the  property  so  surrendered,  as  "it  would  be  impossible  to  under- 
take to  assert  that  there  was  any  plausibility  in  the  allegation  that  our 
treaty  required  a  role  d'equipage" 

Pickering's  interesting  instructions  to  the  Ellsworth  mission,  dated 
October  22,  1799  (Doc.  102,  p.  .561),  contain  a  very  definite  state- 
ment of  the  position  of  the  Government  on  this  subject.  He  lays 
down  as — 

an  indispensable  condition  of  the  [proposed]  treaty  a  stipula- 
tion to  make  to  the  citizens  of  the  United  States  full  compensa- 
tion for  all  losses  and  damages  which  they  shall  have  sustained 
by  reason  of  irregular  or  illegal  captures  or  condemnations  of 
their  vessels  and  other  property.  And  all  captures  and  condemna- 
tions are  deemed  irregular  or  illegal  when  contrary  to  the  law  of 
nations  generally  received  and  acknowledged  in  Europe,  and  to 
the  stipulations  in  the  treaty  of  amity  and  commerce  of  the  6th 
of  February,  1778,  fairly  and  ingenuously  interpreted  while  that 
treaty  remained  in  force,  especially  when  made  and  pronounced : 

(1)  Because  the  vessel's  lading,  or  any  part  thereof,  consisted 
of  provisions  or  merchandise  coming  from  England  or  her  pos- 
sessions. 

(2)  Because   the   vessels    were   not   provided   with   the   roles 


GUSHING  V.  UNITED  STATES  345 

d'eqiiipage  prescribed  by  the  laws  of  France,  and  which  it  has 
been  pretended  were  also  required  by  treaty. 

(3)  Because  sea-letters  or  other  papers  were  wanting,  or  said 
to  be  wanting,  when  the  property  shall  have  been,  or  shall  be,  ad- 
mitted or  proved  to  be  American.  Such  defect  of  papers,  though 
it  might  justify  the  captors  and  exempt  them  from  damages  for 
bringing  in  such  vessels  for  examination,  could  not  with  reason 
be  a  ground  of  condemnation. 

Further  on  in  the  instruction  Mr.  Pickering  says : 

There  never  was,  indeed,  any  intimation  on  tlie  part  of  France 
from  1778,  when  the  treaty  of  amity  and  commerce  was  made, 
until  the  passing  of  the  decree  of  the  Directory,  in  March,  1797, 
that  a  role  d'equipage,  other  than  the  ship's  roll  or  the  shipping 
papers  [see  act  1790],  would  be  required.  It  was  then  suddenly 
demanded,  and  the  decree  .  .  .  was  instantly  enforced  and 
became  a  snare  to  the  multitudes  of  American  vessels,  which,  for 
want  of  previous  notice,  would  not  have  on  board  the  document 
in  question,  if  their  Government  should  permit  them  to  receive 
a  document  which  they  were  under  no  obligation  to  produce.  For 
it  can  not  with  any  semblance  of  justice  be  pretended  that  the 
vessels  of  one  nation  are  bound  to  furnish  themselves  with  papers 
in  forms  prescribed  by  the  laws  of  another.  And  if  we  resort  to 
the  treaty  of  1778,  or  to  the  sea-letter  or  passport  annexed  to  it, 
on  which  letter  the  Directory  pretended  to  found  their  decree  con- 
cerning the  role  d'eqiiipage,  we  shall  see  that  these  words  are  not 
to  be  found  in  either.     {Id.  564.) 

For  the  purpose  of  argument,  however,  we  may  for  the  moment 
admit  the  French  contention  in  this  matter — a  contention  now  adopted 
by  the  defense — and  concede  that,  by  relation  back  through  the  pass- 
port to  the  twenty-fifth  article  of  the  treaty  of  1878,  it  became  the  duty 
of  the  vessel's  master  not  to  file  a  crew  list  at  the  port  of  departure, 
but  to  carry  on  his  vessel  a  role  d'equipage  drawn  and  certified  in 
accordance  wdth  the  ordinances  and  decrees  of  France,  and  not  neces- 
sarily in  accordance  with  the  statutes  of  the  United  States,  to  which 
country  his  vessel  belonged  and  of  which  country  he  was  a  citizen. 

The  position  being  admitted,  we  must  consider  the  amount  of  pen- 
alty which  the  vessel  is  to  suffer  if  such  a  role  be  lacking.  What  pen- 
alty does  the  treaty  impose?  That  instrument  says  nothing  about  a 
rote  or  crew  list,  but  demands  a  passport,  which  latter  document  it 
is  urged  requires  the  presence  of  a  role  on  the  vessel ;  the  treaty  pen- 


346  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

alty,  therefore,  for  the  lack  of  this  role,  not  mentioned  in  the  body 
of  the  instrument,  can  not  be  greater  than  the  penalty  for  the  lack  of 
the  passport  which  is  there  mentioned.  The  object  of  the  passport 
provision  is  clearly  to  be  gathered  from  the  wording  of  the  treaty: 
"To  the  end  that  all  manner  of  dissensions  and  quarrels  may  be 
avoided  and  prevented,"  the  twenty-fifth  article,  it  is  provided  that 
when  either  party  is  at  war  the  vessels  of  the  other  shall  be  furnished 
with  passports  describing  the  name,  property,  and  bulk  of  the  ship, 
together  with  the  name  and  abode  of  the  master,  so  that  it  may  appear 
that  the  vessel  "really  and  truly  belongs  to  the  subjects  of  one  of  the 
parties."  Such  is  the  substance  of  the  twenty-fifth  article,  whose  ob- 
ject as  clearly  expressed  is  not  to  affix  penalties,  but  to  avoid  "dissen- 
sions and  quarrels." 

The  twenty-seventh  article  provides,  that  if  a  merchant  ship  of 
either  party  meet  a  man-of-war  or  privateer  of  the  other,  the  armed 
ship,  "for  the  avoiding  of  any  disorder,"  shall  remain  out  of  cannon- 
shot,  send  boats  to  the  merchantman ;  put  no  more  than  two  or  three 
men  on  board,  to  whom  the  master  shall  show  his  passport;  having 
done  which  he  may  pursue  his  voyage,  and  the  vessel  may  not  be 
molested  or  searched  in  any  manner,  nor  chased,  nor  forced  out  of 
her  course.  The  passport,  then,  being  given  for  the  purpose  of  pre- 
venting "dissensions  and  quarrels,"  is  by  virtue  of  its  presence  alone 
to  free  the  ship  from  search,  chase,  or  forced  deviation.  No  penalty 
is  affixed  for  the  lack  of  this  passport  other  than  what  may  be  in- 
ferred, as,  for  example,  that  without  it  she  would  be  liable  to  detention 
and  search,  and  possibly  to  investigation  by  a  prize  court  or  other 
competent  tribunal  as  to  the  honesty  of  her  character  and  the  inno- 
cence of  her  voyage. 

No  treaty  penalty  being  affixed  for  the  absence  of  a  definitely  pre- 
scribed document,  how  can  one  be  held  to  exist  for  the  absence  of  a 
subsidiary  document  which  the  treaty  does  not  require  the  master  to 
exhibit,  even  if  its  presence  on  board  be  necessary?  An  American 
vessel  boarded  by  a  French  officer  need  only,  so  says  article  27,  do  one 
thing,  need  only  show  one  paper,  to  wit,  his  passport;  this  done,  he 
may  immediately  proceed. 

No  rule  of  international  law  has  been  called  to  our  attention,  and 
none  is  known  to  us,  which,  in  the  absence  of  specific  agreement  to  the 
contrary,  requires  the  presence  on  vessels  of  any  particular  document. 
Some  papers  undoubtedly  should  be  carried  for  protection ;  that  is. 


GUSHING  V.  UNITED  STATES  347 

carried  for  the  benefit  of  the  ship,  to  divert  suspicion,  to  avoid  deten- 
tion and  delay,  and  to  aflford  at  least  prima  facie  proof  that  she  is 
vi'hat  she  pretends  to  be,  an  innocent  vessel  engaged  in  legitimate  busi- 
ness. The  nature  and  character  of  ships'  papers  is,  however,  usually 
a  matter  of  municipal  regulation  to  which  foreign  vessels  must  con- 
form or  incur  certain  reasonable  penalties,  enforceable  within  the  terri- 
torial jurisdiction  of  the  enacting  Government.  Many  examples  of 
municipal  acts  of  this  nature  may  be  found  in  our  own  statute  books. 
Speaking,  generally,  however,  aside  from  local  regulations  not  en- 
forceable by  the  Government  of  one  nation  over  the  vessels  of  an- 
other on  the  high  seas,  the  class  and  kind  of  papers  to  be  carried  by  a 
merchantman  are  prescribed  by  his  own  Government,  and  as  between 
him  and  a  foreign  vessel  of  war  these  papers  are  prima  facie  proof  of 
innocence  and  honesty ;  but  as  they  are  not  conclusive  on  these  points, 
so  is  their  absence  no  more  than  the  foundation  of  a  reasonable  sus- 
picion deserving  inquiry  into  the  true  character  of  the  vessel  and 
voyage.     (See,  also.  Merlin,  2  Prises  Maritimes,  51.) 

It  is  of  the  highest  importance  [says  Ortolan]  that  a  vessel  be 
in  position  to  prove  her  nationality.  The  flag  is  the  distinctive 
evident  sign  of  the  vessel's  national  character.  Every  state  has 
its  particular  colors  under  which  its  citizens  sail.  .  .  . 
But  this  distinctive  sign  can  not  be  the  only  one,  for  if  it  were  it 
would  be  easy  to  disguise  the  nationality  of  a  vessel.  Therefore, 
to  provide  clear  proof  of  this  nationality,  ships'  papers  or  sea- 
letters  are  required,  with  which  every  merchantman  should  be 
provided.  The  number,  nature,  and  form  of  these  papers  are 
regulated  by  the  law  of  each  country,  usually  through  the  pro- 
visions of  codes  of  maritime  commerce.  (Regies  inter  national  es 
et  Diplomatie  de  la  Mer.    Ortolan,  vol.  1,  p.  174.) 

The  right  to  visit  [says  Hautefeuille]  must  be  confined  tc  an 
ascertainment  through  examination  of  official  papers  of  the  na- 
tionality of  the  vessel  met,  and  also  in  case  she  is  bound  to  an 
enemy's  port,  whether  faithful  to  her  duty  she  carries  no  arms 
or  munitions  of  war;  that  is,  that  she  is  not  guilty  of  interference 
in  the  hostilities.  These  two  single  points  ascertained,  and  that 
only  by  documents  coming  from  the  neutral  sovereign,  or  his 
delegates,  the  cruiser  should  retire  and  allow  the  vessel,  now 
recognized  as  neutral,  to  continue  her  voyage.  (Hautefeuille,  vol. 
3,  p.  428;  Parsons,  Shipping,  vol.  2.  pp.  475-477.) 

The  lack  of  a  particular  ship's  paper  may  be  punishable  under  cer- 
tain circumstances  within  local  jurisdiction  as  a  police  measure,  but 


-348  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

never,  so  far  as  we  know,  by  absolute  confiscation  when  it  is  shown 
that  the  vessel  is  innocently  pursuing  a  legitimate  voyage.  An  acci- 
dent is  easily  supposable  by  which,  after  leaving  port,  and  while  on 
the  high  seas,  all  the  papers  of  a  ship  may  by  fire  or  water  be  destroyed. 
On  that  account  is  she  to  be  confiscated  ?  We  know  of  no  rule  of  law, 
municipal  or  international,  which  would  authorize  such  a  course. 

The  Industry,  it  is  said,  did  not  have  a  proper  role  d'equipage. 
The  treaty  did  not  require  any,  or,  if  it  did,  then  it  punished  the  lack 
of  the  role  by  detention,  search,  and  inconvenience  only.  The  crew  list 
is  a  paper  usually  carried  on  a  merchant  vessel,  but  its  absence  is  not, 
by  international  law,  punishable  by  confiscation. 

After  all  the  discussion  between  the  two  Governments  in  regard  to 
the  role  d'equipage,  we  find  in  article  4  of  the  treaty  of  1800  provision 
for  a  passport  identical  in  form  with  that  of  1778,  which  could  only 
have  been  so  therein  inserted  because  both  Governments  had  agreed 
upon  what  had  always  been  contended  for  by  the  United  States,  and 
finally  admitted  by  France,  that  this  form  imposed  upon  the  ship- 
master no  obligation  to  carry  on  board  his  vessel  the  document  tech- 
nically known  to  the  French  law  as  a  role  d'equipage. 

That  France  came  openly  to  this  position  is  shown  by  various 
cases. 

In  the  case  of  the  Louise  (13  Thermidor,  year  IX)  the  council  of 
prizes  decided  that  the  laws  of  France  relative  to  roles  d'equipage 
should  not  be  applied  to  foreign  ships,  it  being  sufficient  that  their 
roles  conformed  to  the  laws  of  their  own  country.  (Traite  des  Prises 
maritimes,  Pistoye  et  Duverdy,  vol.  1,  p.  484.) 

In  the  cases  of  the  Elisabeth  (17  Pluviose,  year  VII)  and  of  Les 
Deux  Amis  (3  Messidor,  year  VIII)  it  was  held  that  even  a  failure  to 
produce  a  proper  passport  or  sea-letter  did  not  warrant  condemnation 
if  the  neutrality  of  the  vessel  sufficiently  appeared  from  other  papers 
or  indicia  on  board.     {Id.,  pp.  439,  479.) 

The  commissioner  of  the  French  Government  very  thoroughly  pre- 
sented this  whole  question  in  the  case  of  the  Pegou,  on  trial  before  the 
council  of  prizes.  (Traite  des  Prises  maritimes,  Pistoye  et  Duverdy, 
vol.  2,  pp.  51  ^^  seq.) 

Among  other  things,  he  said  that  certainly  the  regulations  of  1744 
and  1778  and  the  orders  of  the  Directory  required  a  role  d'equipage, 
certified  by  public  officers  at  the  port  of  departure.  Certainly,  also, 
the  role  d'equipage  is  not  set  forth  in  the  treaty  of  1778  as  among 


GUSHING  V.  UNITED  STATES  349^ 

the  documents  required  to  show  neutrality.  Whether  the  treaty  or  the 
French  decrees  should  prevail  he  does  not  decide,  but  starting  with 
the  principle  that  all  questions  of  neutrality  are  questions  of  good 
faith,  in  which  actual  facts,  not  simply  appearances,  must  be  examined, 
he  holds  that  the  absence  of  a  required  document  or  an  irregularity 
in  form  does  not  authorize  condemnation  as  prize.  The  truth  must 
be  sought,  and  that  not  by  technical  forms;  simply  omissions  or  ir- 
regularities should  never  obscure  the  truth  if  it  be  otherwise  proved.. 
The  essential  question  is,  whether  the  ship  is  or  is  not  in  fact  neutral. 
it  is  not  of  importance  that  legislators  have  thought  it  their  duty  to 
require  the  presentation  of  particular  papers;  the  severity  of  the  legis- 
lators is  always  subordinate  to  the  surrounding  circumstances  which 
alone  lead  to  conviction.  The  neutrality  should  be  proved,  but  this 
may  be  done  notwithstanding  the  omission  or  irregularity  of  certain 
forms.  On  the  other  hand,  fraud  may  be  imcovered,  though  sought  to 
be  concealed  under  deceiving  appearance.  All  thorns  and  all  subtle- 
ties of  law  must  be  thrown  aside  "il  faiit  proceder  par  bonne  et  mure 
deliberation  et  y  regarder  par  la  conscience."  And  the  court  fol- 
lowed his  advice  thus  officially  given. 

We  are  irresistibly  forced  to  the  conclusion  that  a  condemnation 
based  simply  on  the  absence  of  a  role  d'cquipage  or  upon  its  informal- 
ity was  illegal. 

We  do  not,  however,  hold  that  the  absence  or  informality  of  a  ship's 
paper  may  not  create  a  suspicion  calling  for  explanation,  or  that  its 
absence  or  informality  may  not,  in  connection  with  other  evidence, 
give  good  ground  for  investigation  and  suitable  punishment.  The 
cases  now  before  us  do  not  present  this  issue.  In  the  case  of  the 
Industry,  Benjamin  Hawkes,  master,  for  example,  there  is  no  al- 
legation in  the  decree  of  the  tribunal,  nor  is  there  anything  in  the 
proceedings  tending  to  show  that  she  was  not  what  she  pretended  to 
be,  an  American  vessel  owned  by  citizens  of  the  United  States,  hon- 
estly pursuing  a  legitimate  and  peaceful  voyage.  The  grounds  of  con- 
demnation were  solely  that  the  role  d'equipage  which  the  vessel  had 
on  board  was  not  in  form,  being  signed  only  by  one  notary  public 
"without  the  confirmation  of  witnesses,"  and  there  being  written  on 
the  back  of  said'  role  an  unsigned  certificate  that  a  role  d'cquipage 
was  not  necessary. 

It  will  probably  become  important  to  consider  in  the  future  the 
proposition  of  the  defense  that  the  captured  vessel  is  required  to  prove 


350  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

her  innocence — that  is,  that  the  onus  prohandi  rests  upon  her  in  prize 
proceedings.  In  this  case,  however,  there  is  no  allegation  that  the 
vessel  was  violating  neutrality  or  violating  any  law  of  nations  or  any 
law  of  France,  other  than  that  which  demanded  a  role  d'equipage  in  a 
prescribed  form.    Consideration  of  this  question  is  therefore  reserved. 

Some  of  the  points  presented  in  the  argument  we  do  not  consider 
more  in  detail,  as  they  have  either  been  discussed  by  us  before,  or,  in 
our  judgment,  are  decided  in  the  conclusions  we  have  reached  upon 
other  contentions  to  which  they  are  subordinate. 

We  thank  counsel,  both  those  representing  the  claimants  and  those 
who  appeared  in  behalf  of  the  Government,  for  the  valuable  assistance 
they  have  rendered  the  court  by  the  thorough  presentation  of  the  many 
and  complicated  questions  involved  in  these  cases. 

Motion  denied. 


WILLIAM    R.    HOOPER,    Administrator,    v.    THE    UNITED 
STATES,  AND  Other  Cases^ 

[No.  3694  French  Spoliations.     Decided  November  14,  1887] 

On  the  Proofs 

This  is  the  fourth  decision  in  the  French  Spoliation  Cases.     See  Gray's  Case 
(21   C.    Cls.  340)  ;  Holhrook   {ibid.  434)  ;  Cushing's  (22  ibid.    1).     The 
important    subjects    considered    are:      The    duration    of    the    treaties 
with  France ;  the  right  of  uninsured  owners  to  constructive  insurance ; 
the  status  of  American  vessels  commissioned  to  attack  French  men-of- 
war  and  carrying  armaments ;  the  blockade  of  British  ports  in  the  West 
Indies ;  the  liability  of  France  for  salvage  on  recapture ;  the  measure  of 
damages  for  freight  earnings. 
I.  The  treaties  with   France,   1778,  constitute  the  rule  by  which  all  differ- 
ences between  the  two  nations  are  to  be  measured  after  February  6, 
1778,  and  before  July  7,   1798.     Subsequent  to  the  latter  date  they  are 
governed  by  international  law. 
II.  A  treaty  is  in  its  nature  a  contract,  and  if  the  consideration  fail  or  im- 
portant provisions  be  broken  by  one  party,  the  other  may  declare   it 
terminated. 
HI.  Abrogation  of  a  treaty  may  be  justified  by  a  change  of  circumstances. 
IV.  The  circumstances  justified  the  United  States  in  annulling  the  treaties  of 
1778;  and  the  Act  of  July  7,  1798,2  was  effective  as  between  nations.    By 
the   enactment   the   compacts   ended. 

1  Court  of  Qaims  Reports,  vol.  22,  page  408.  ~  Supra,  p.  65. 


HOOPER  V.  UNITED  STATES  351 

V.  The  insurance  to  be  allowed  to  owners  in  French  Spoliation  Cases  is 
neither  constructive  insurance  nor  insurance  "to  cover,"  but  premiums 
actually  paid. 
VI.  A  vessel  fitted  for  the  purpose  of  seizing  French  armed  vessels  under 
the  Act  of  July  9,  1798,  was  legitimate  prize  in  the  limited  war  then 
defined  by  Congress ;  but  the  arming  of  a  merchant  vessel  strictly  for 
defense  whose  only  object  was  trade  did  not  authorize  condemnation, 
even  if  a  license  under  the  Act  of  June  25,  1798,^  or  the  Act  of  July  9, 
1798  2  (1  Stat.  L.,  pp.  512,  578),  were  found  on  board. 
VII.  A  vessel  may  be  subject  to  seizure  though  not  liable  to  condemnation; 
and  if  there  be  probable  cause,  prize  courts  may  award  the  captors 
costs  though  the  vessel  be  not  good  prize. 

VIII.  No  actual  blockade  was  maintained  by  the  French  of  any  British  port  in 
the  West  Indies  during  the  period  of  French  spoliations.    Therefore  a 
provision-laden  ship  bound  for  a  British  port  was  not  subject  to  con- 
demnation while  the  treaties  of  1778  remained  in  force. 
IX.  The  burden  of  proof  in  prize  proceedings  is  on  the  vessel;  she  must  clear 
herself    from   suspicion;   but  no  particular   paper   is   indispensable;   an 
honest,  commercial,  lawful  voyage  may  be  shown  though  no  paper  be 
produced. 
X.  The  spoliations  of  France  were  illegal,  and  admitted  by  France;  but  by 
the  treaty  of  1800  were  surrendered  in  consideration  of  a  release  from 
France  of  her  claims  against  the  United  States. 
XI.  Salvage  is  remuneration  for  aid  in  case  of  danger.     During  the  period 
of  French  spoliations  the  conduct  of  the  French  prize  courts  rendered 
recapture  a   rescue   from  actual   danger,  and   the  recaptors   entitled   to 
salvage. 
XII.  Freight  earned  is  an  element  of  value  in  property  lost;  full  freight  may 
be  often   recoverable  although  the  vessel  may  not  reach  her  destina- 
tion ;  but  in  these  cases  the  court  adopts  the  general  rule  of  commercial 
usage,  two-thirds  of  the  full  freight  as  the  measure  of  damages. 

XIII.  When  a  vessel  is  actually  under  contract  for  a  voyage  to  one  port,  thence 
to  proceed  to  another,  she  has  a  present  existing  title  in  the  freight 
money  of  the  entire  voyage;  but  this  does  not  extend  to  a  mere  ex- 
pectancy of  finding  a  cargo  at  her  first  port. 

The  Reporters'  statement  of  the  case : 

The  first  report  to  Congress  in  these  cases  was  made  on  the  first 
day  of  the  present  term,  December  6,  1886.  The  cases  reported  and 
the  findings  sent  up  will  be  found  in  the  case  of  Gushing  (22  C.  Cls.  1). 
Those  findings  and  the  opinions  of  this  court  in  Gray's  Case,  in  Hol- 
brook's  Case,  and  in  Cushing's  Case  were  likewise  pubHshed  by  Con- 
gress, and  constitute  Miscellaneous  Document  No.  6,  H.  R.,  Forty- 
ninth  Congress,  second  session. 

1  Supra,  p.  59.  2  Supra,  p.  65. 


352  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  opinion  in  the  present  case  of  Hooper  was  delivered  Novem- 
ber 7,  1887.  The  findings  will  form  a  part  of  the  second  report  to 
Congress.^    They  are  as  follows: 

I.  The  schooner  John,  a  duly  registered  vessel  of  the  United  States, 
of  which  John  C.  Blackler  was  master,  sailed  on  a  commercial  voyage 
from  the  port  of  Salem,  Mass.,  bound  for  Martinique  with  a  cargo  of 
codfish,  hogshead  bungs,  and  lumber,  owned,  one-half  the  vessel  and 
the  whole  of  the  cargo,  by  William  Gray,  now  deceased,  of  whom  the 
claimant  William  Gray,  of  Boston,  Mass.,  is  the  duly  appointed  admin- 
istrator, and  the  other  half  of  the  vessel  by  William  Blackler,  now 
deceased,  of  whom  the  claimant  William  R.  Hooper  is  the  appointed 
administrator;  all  citizens  of  the  United  States. 

She  was  of  111  tons,  with  seven  men,  had  two  guns,  and  carried  a 
letter  of  marque. 

n.  Said  vessel  while  lawfully  pursuing  her  voyage  was  seized  on 
the  high  seas,  near  Martinique,  by  the  French  frigate  La  Syrene  (or 
Cyrcn)  on  the  first  day  of  February,  1800,  and  there  burned,  sunk, 
and  destroyed.  The  captain  was  taken  by  said  frigate  into  the  French 
port  L'Orient,  where  proceedings  were  instituted  in  a  prize  court, 
wherein  claim  was  made  in  behalf  of  the  owner.  Gray,  for  payment 
for  said  vessel  and  cargo. 

It  appears  that  "the  seizure  was  decided  upon  as  much  on  account 
of  default  in  the  production  of  her  crew  list  {role  d' equipage)  as  that 
there  was  found  on  board  a  commission  of  war  with  instructions  to 
attack  French  ships,"  elsewhere  in  the  record  called  a  letter  of  marque 
to  attack  armed  French  ships,  and  judgment  was  given  against  the 
claimant. 

ni.  The  case  was  taken  to  the  council  of  prizes  at  Paris,  where  the 
captain  alleged  "that  neither  he  nor  his  crew  were  allowed  to  take 
their  baggage  before  the  ship  was  set  on  firt,  and  that  their  captor  took 
away  the  sails,  provisions,  and  everything  else  which  they  thought 
proper."  The  French  commissioner  in  his  argument  for  the  French 
Government  before  that  tribunal,  said,  among  other  things,  "I  would 
argue  willingly  for  the  release  of  both  (vessel  and  cargo)  according 
to  the  provisions  of  articles  of  the  agreement  of  the  8th  Vendemiaire, 
year  9,  if  the  property  were  still  intact,  without  preliminary  judgment, 
but  this  is  not  Mr.  Gray's  case,  since  the  ship  John  was  sunk  and 
the  owner  had  no  profit  from  her."     "I  think  that  in  the  decision  it 


1  See  Mis.  Doc.  No.  5,  Senate,  Fiftieth  Congress,  first  session. 


HOOPER  V.  UNITED  STATES  353 

is  fair  that  the  council  should  recommend  Mr.  Gray  to  have  recourse 
to  his  minister  to  request  him  to  cause  the  fact  of  this  carrying  away 
to  be  verified,  and  obtain  from  the  justice  of  the  Government  the  in- 
demnification which  may  be  due  him." 

The  council  decided  and  entered  a  decree  that  "the  council  declares 
the  merchant,  William  Gray,  Jr.,  not  justified  in  his  claim  for  the 
value  of  the  ship  John  and  cargo,  but  with  liberty  to  appeal  to  the 
Government  for  justice  in  regard  to  the  property  which  he  proves  to 
have  been  removed  from  said  vessel  by  the  crew  of  the  frigate  Syrene." 

Mr.  William  E.  Earle,  Mr.  William  Gray,  Mr.  Edward  Lander,  Mr. 
George  S.  Boiitwell,  Mr.  A.  H.  Cragin,  Mr.  Leonard  Myers,  Mr.  Law- 
rence Lezvis,  Jr.,  Mr.  James  Lowndes,  Mr.  Augustine  Chester,  and 
Mr.  S.  Prentiss  Nutt  were  heard  for  claimants. 

Mr.  Benjamin  Wilson  and  Mr.  Charles  S.  Russell  (with  whom  was 
Mr.  Assistant  Attorney-General  Howard)  for  the  defendants. 

Davis,  J.,  delivered  the  opinion  of  the  court : 

The  court  has  now  delivered  three  opinions  upon  general  issues 
raised  in  the  French  Spoliations  Cases.  The  first  related  to  the  broad 
questions  as  to  the  validity,  against  France,  of  the  claims  as  a  class, 
and  the  resulting  liability  of  the  United  States  to  the  claimants;  the 
second  was  directed  more  especially  to  forms  of  pleading,  the  value 
of  evidence,  and  rights  of  insurers;  while  the  third  disposed  of  a 
motion  made  by  the  defendants  for  a  rehearing  of  the  general  ques- 
tions discussed  in  the  first  opinion.  (Gray,  administrator,  v.  The 
United  States,  21  C.  Cls.  340;  Holhrook,  administrator,  v.  The  United 
States,  21  C.  Cls.  334;  Gushing,  administrator,  v.  The  United  States, 
22  C.  Cls.  1.) 

A  large  number  of  cases  have  since  been  argued  and  submitted  to 
the  court,  and  certain  general  questions  are  found  raised  in  many  of 
them.  Those  questions  we  shall  now  proceed  to  discuss,  as  well  as 
two  points  which  were  sent  back  by  the  court  for  further  argument. 

It  is  urged  by  the  claimants  that  the  treaties  of  1778  remained  in 
force,  notwithstanding  the  abrogating  act  of  July  7,  1798,  until  the 
final  ratification  of  the  treaty  of  1800,  and  that  these  treaties  prescribe 
the  rule  by  which  all  the  spoliation  claims  are  to  be  measured.  This 
position  is  denied  by  the  Government. 


354  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

For  the  purpose  of  this  branch  of  the  case,  the  period  of  the  spoli- 
ations may  be  divided  into  two  parts :  that  prior  to  July  7,  1798,  and 
that  subsequent  thereto  and  prior  to  the  ratification  of  the  treaty  of 
1800. 

As  to  the  first  period,  we  find  the  position  on  both  sides  to  have 
been  consistent,  which  a  few  citations  covering  different  years  will 
clearly  show. 

In  February,  1793,  the  National  Convention  granted  substantial 
favors  to  the  United  States,  among  them  opening  the  ports  of  the 
colonies  to  American  ships,  and  granting  to  produce  carried  in  Ameri- 
can bottoms  duties  the  same  as  those  imposed  upon  French  vessels 
(Senate,  19th  Cong.,  1st  sess.,  Doc.  102,  p.  35).  This  was  followed  by 
the  decree  of  March  26,  1793,  granting  new  favors  to  what  the  Con- 
vention called  their  "ally  nation"  (ibid.,  p.  36).  Soon  after  this  M.  Le 
Brun,  the  minister  of  foreign  affairs,  replying  to  a  complaint  from  our 
minister,  Mr.  Morris,  said  that  he  had  requested  the  minister  of 
marine  "to  prevent  in  the  future  the  vessels  of  our  good  allies  from 
being  exposed  to  the  attacks  of  our  ships  of  war  and  privateers" 
(ibid.,  p.  38).  Upon  the  9th  May,  1793  (ibid.,  p.  42),  the  Conven- 
tion passed  a  decree  authorizing  the  arrest  of  neutral  vessels  laden 
whollv  or  in  part  with  neutral  property  and  bound  to  an  enemy  port, 
or  laden  with  enemy  merchandise.  Mr.  Morris  immediately  demanded 
that  the  United  States  be  exempted  from  the  operation  of  this  decree 
as  contrary  to  the  terms  of  the  treaty  of  commerce  (ibid.,  p.  44).  His 
request  was  complied  with,  the  Convention's  action  in  this  regard 
being  based  upon  the  sixteenth  article  of  that  treaty  (ibid.,  p.  46). 

Now  occurred  a  curious  incident  in  legislative  history.  Five  days 
after  the  passage  of  the  exemption  the  Convention  reversed  its  action. 
Mr.  Morris  protested  (ibid.,  p.  47),  and  the  1st  July  the  Convention 
again  decreed  "that  the  vessels  of  the  United  States  are  not  com- 
prised in  the  dispositions  of  the  decree  of  the  9th  May,  conformably 
to  the  sixteenth  article  of  the  treaty  concluded  the  6th  of  February, 
1778."  July  27th  this  exception  v/as  annulled  and  the  United  States 
were  again  thrown  under  the  effect  of  the  original  decree  of  the  pre- 
ceding May  (ibid.,  p.  50).  Morris  wrote  Jefferson,  then  Secretary  of 
State :  "The  decree  respecting  neutral  bottoms,  so  far  as  it  respects 
the  vessels  of  the  United  States,  has,  you  will  see,  been  bandied  about 
in  a  shameful  manner.  I  am  told,  from  Havre,  that  it  is  by  the  force 
of  money  that  the  determinations  which  violate  our  rights  have  been 


HOOPER  V.  UNITED  STATES  355 

obtained ;  and,  in  comparing  dates,  events,  and  circumstances,  this  idea 
seems  to  be  but  too  well  supported"  (ibid.,  p.  52).  Prior  to  this  Mr. 
Morris  had  written  the  minister  of  foreign  affairs  asking  that  the 
matter  be  fixed  definitely,  otherwise  "we  must  expect  to  see  that 
species  of  dispute  multiplied,  in  which  cupidity  on  the  one  hand  and 
fear  on  the  other  will  give  place  to  the  calumnious  insinuations,  which 
lead  uninformed  persons  to  think  that  the  interests  of  individuals 
might  influence  the  national  decisions  (ibid.,  p.  47).  This  note  was 
followed  by  the  exemption  of  July,  soon  after  which  Morris  laid 
before  the  foreign  office  more  specific  charges  (ibid.,  p.  51),  notwith- 
standing which  the  exemption  was  again  reversed.  In  all  this  trans- 
action the  existing  force  of  the  treaties  of  1778  was  nowhere  denied, 
and  in  the  two  exception  was  expressly  admitted. 

At  this  time  Genet  was  carrying  on  his  objectionable  course  in  the 
United  States  under  the  shelter,  as  he  contended,  of  the  treaties,  whose 
binding  effect  Mr.  Jefferson  did  not  deny,  while  he  disputed  Genet's 
construction  of  them  (ibid.,  pp.  53  et  seq.). 

Mr.  Morris  still  endeavored  to  secure  exemption  from  the  May 
decree,  but  without  success,  and  finally  he  wrote,  during  October, 
1793,  that  in  effect  the  minister  of  foreign  affairs  had  acknowledged 
and  lamented  to  him  the  impropriety  of  the  decree,  "but  unable  to 
prevail  over  the  greater  influence  for  the  repeal  of  it,  he  is  driven  to 
the  necessity  of  exercising  a  step  which  it  is  not  possible  to  justify. 
There  is  no  use  in  arguing  with  those  who  are  already  convinced, 
and  where  no  good  is  to  be  expected  some  evil  may  follow.  I  have, 
therefore,  only  stated  the  question  on  its  true  ground,  and  leave  to 
you  in  America  to  insist  on  a  rigid  performance  of  the  treaty  or  slide 
back  to  the  equal  state  of  unfettered  neutrality"  (ibid.,  p,  75). 

Mr,  Monroe  now  succeeded  Mr.  Morris  in  Paris,  and  writing  home 
that  he  "felt  extremely  embarrassed  how  to  touch  again  upon  their  [the 
French]  infringement  of  the  treaty  of  commerce  whether  to  call  on 
them  to  execute  it,  or  leave  that  question  on  the  ground  I  had  first 
placed  it.  .  .  .  Upon  full  consideration  I  concluded  that  it  was 
the  most  safe  and  sound  policy  to  leave  this  point  where  it  was  be- 
fore" (ibid.,  p.  85).  He  evidently  made  a  distinction  between  "advis- 
ing and  pressing"  the  execution  of  the  treaty  and  insisting  upon  its 
execution.  Instead  of  demanding  its  execution  as  a  right  he  advised  it 
as  a  politic  act  on  the  part  of  France,  fearing  that  a  more  decided 
course  on  his  part  would  lead  to  a  counter  demand  for  the  execution 


356  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

by  the  United  States  of  the  guaranty  clause.  To  this  communica- 
tion Monroe  received  from  the  Secretary  of  State  a  rather  tart 
response,  of  which  this  is  the  important  paragraph  (ibid.,  p.  87)  : 

The  fourth  head  of  inquiry  stated  in  your  letter  shows  that 
you  were  possessed  of  cases  which  turned  entirely  upon  the  im- 
propriety of  the  decree,  and  such,  too,  was  certainly  the  fact. 
Now,  without  the  abrogation  of  the  decree,  so  far  as  it  repre- 
sented those  cases,  the  redress  which  you  were  instructed  to  de- 
mand could  not  be  obtained.  In  truth  there  was  no  cause  or  pre- 
tense for  asking  relief  but  upon  the  ground  of  that  decree  having 
violated  the  treaty.  Does  not  this  view  lead  to  the  inevitable  con- 
clusion that  the  decree,  if  operative  in  future  instances,  would  be 
no  less  disagreeable,  and  consequently  that  its  operation  in  future 
instances  ought  to  be  prevented,  a  circumstance  which  could  be 
accomplished  only  by  a  total  repeal? 

Soon  after  this  the  Convention  resolved  to  carry  into  strict  execu- 
tion the  treaty  of  commerce  of  1778  (ibid.,  p.  88),  so  that  the  year 
1795  opened  with  a  similar  understanding  on  each  side  as  to  the  en- 
during force  of  the  treaty. 

At  this  time  commenced  to  circulate  in  France  reports  as  to  what 
Mr.  Jay  had  been  doing  in  England.  Mr.  Monroe  thought  the  utmost 
cordiality  had  been  restored  between  the  two  Republics,  and  yet  feared 
that  the  prospect  had  become  clouded  by  the  rumors  from  England. 
In  August,  1795,  newspapers  reached  Paris,  which  contained  the  text 
of  the  Jay  treaty  (ibid.,  p.  127),  and  so  much  feeling  was  aroused 
that,  after  considerable  delay,  it  was  decided  to  send  an  envoy  to  the 
United  States  to  declare  to  our  Government  the  dissatisfaction  of  the 
French  in  "respect  to  our  treaty  with  Great  Britain  and  other  acts 
which  they  deemed  unfriendly  to  them"  (ibid.,  p.  129)  ;  a  course  which 
Monroe  endeavored  to  prevent. 

Thereupon  followed,  in  March,  1796  (ibid.,  p.  131),  a  "summary 
exposition  of  the  complaints  of  the  French  Government  against  the 
Government  of  the  United  States,"  in  which  an  infraction  of  the 
treaties  is  relied  upon  as  a  legitimate  grievance,  and  in  answering 
which  Monroe  (ibid.,  p.  135)  tacitly  admits  by  his  argument  the 
enduring  force  of  those  treaties. 

The  Jay  treaty  was  ratified,  news  thereof  reached  Paris  (ibid.,  p. 
142),  and  the  threatening  cloud  burst. 

The   minister   of    foreisfn   affairs    informed    Mr.    Monroe   that   the 


HOOPER  V.  UNITED  STATES  357 

Directory  regarded  the  Jay  treaty  as  a  breach  of  friendship,  and  saw 
"in  the  stipulations  which  respect  the  neutrality  of  the  flag  an  aban- 
donment of  the  tacit  engagement  which   subsisted  between  the  two 

nations  on  this  point  since  the  treaty  of  commerce  of  1778 

After  this,  citizen  minister,  the  Executive  Directory  thinks  itself 
founded  in  regarding  the  stipulations  of  the  treaty  of  1778  which  con- 
cern the  neutrality  of  the  flag  as  altered  and  suspended  in  their  most 
essential  parts  by  this  act,  and  that  it  would  fail  in  its  duty  if  it  did 
not  modify  a  state  of  things  which  would  never  have  been  consented 
to  but  upon  the  condition  of  the  most  strict  reciprocity"  (ibid.,  p.  143). 
Monroe  argued  in  reply  that  the  treaty  of  1778  had  not  been  violated, 
closing  with  a  renewal  of  his  complaints  of  French  conduct  in  regard 
to  American  commerce. 

Pinckney  was  now  ordered  out  to  succeed  Monroe,  but  before  he 
reached  Paris  France  gave  notice  of  intended  reprisals  (ibid.,  p.  147), 
and  in  October  (1796),  Monroe  received  a  copy  of  the  Executive 
Directory's  decree  of  July  2,  1796,  with  notice  that  it  would  be  applied 
to  the  United  States,  and  that  his  functions  as  minister  were  suspended 
(ibid.,  p.  148).  The  decree  provided  that  France  should  treat  all 
"neutral  vessels,  either  as  to  confiscations,  as  to  searches  or  captures, 
in  the  same  manner  as  they  shall  suffer  the  English  to  treat  them." 
In  communicating  the  decision  of  his  Government,  however,  the 
French  minister  was  careful  to  state  that  "the  ordinary  relations  sub- 
sisting between  the  two  people,  in  virtue  of  the  conventions  and 
treaties,  shall  not  on  this  account  be  suspended."  Pinckney  arrived, 
but  was  not  received,  and  Monroe  was  dismissed  with  language  which 
Mr.  Adams  described  as  "studiously  marked  with  indignities  towards 
the  Government  of  the  United  States." 

This  brings  us  to  the  close  of  1796,  and  however  strained  the  rela- 
tions of  the  two  countries  had  become,  neither  had  yet  endeavored  to 
throw  off  the  yoke  of  the  treaties ;  on  the  contrary,  all  discussion  was 
founded  upon  them  as  still  in  force. 

In  February,  1797,  the  French  minister  of  foreign  affairs  claimed 
the  benefit  of  the  treaty  in  a  fallacious  argument  as  to  the  role 
d'equipage,  suggesting  incidentally  that  "the  Federal  Government 
doubtless  had  never  ceased  to  look  upon  the  treaty  of  1778  as  obliga- 
tory upon  the  two  nations"  (ibid.,  p.  156). 

The  decree  of  the  Executive  Directory  of  March  2,  1797,  which  is 
very  harsh  upon  neutrals,  speaks  of  the  treaties  as  existing  in  a  shape 


358  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

modified  by  the  Jay  treaty  (ibid.,  p.  160).  In  April  succeeding,  the 
condemnation  of  an  American  vessel  is  excused  as  in  accordance  with 
treaty;  and  this  is  again  done  in  the  following  November.  The  in- 
structions to  Pinckney,  Marshall,  and  Gerry  (July  15,  1797),  recog- 
nized the  treaties  as  still  in  force  (ibid.,  p.  453)  ;  and  the  18th  March, 
1798,  Talleyrand  based  his  complaints  upon  them  (ibid.,  p.  493). 
Finally  Congress  found  it  necessary  by  statute  to  declare  the  treaties 
abrogated ;  an  action  clearly  useless  if  they  were  non-existent ;  an 
action  which  in  effect  admitted  their  continuing  force  to  that  day. 

The  treaties  of  1778,  particularly  the  treaty  of  commerce,  which  is 
the  important  one  for  our  purposes,  were  in  existence  until  the  passage 
of  the  abrogating  act.  Whatever  disputes  occurred  between  this 
country  and  France  during  the  disturbed  period  following  the  con- 
clusion of  the  Jay  treaty  arose  from  differences  of  interpretation  of 
various  clauses  of  the  Franco-American  treaty,  and  on  neither  side 
do  we  find  seriously  advanced  a  contention  that  the  treaties  were  not 
in  existence  and  were  not  binding  upon  both  nations.  The  United 
States  distinctly  urged  their  enduring  force,  while  the  French  de- 
parted from  this  position  only  in  this  (if  it  be  a  departure),  that  the 
Jay  treaty  introduced  a  modification  into  their  treaty  with  us,  of 
which  they  were  entitled  to  the  benefit. 

We  are  of  opinion  that  the  treaties  of  1778,  so  far  as  they  modified 
the  law  of  nations,  constituted  the  rule  by  which  all  differences 
between  the  two  nations  were  to  be  measured  after  February  6,  1778, 
and  before  July  7,  1798. 

As  to  the  period  after  July  7,  1798: 

On  that  date  the  abrogating  act  passed  by  the  Congress  was  ap- 
proved by  the  President  and  became  a  law  within  the  jurisdiction  of 
the  Constitution ;  a  law  replacing  to  that  extent  the  treaties,  and  bind- 
ing upon  all  subordinate  agents  of  the  nation,  including  its  courts,  but 
not  necessarily  final  as  the  annulment  of  an  existing  contract  between 
two  sovereign  powers. 

A  treaty  which  on  its  face  is  of  indefinite  duration  and  which  con- 
tains no  clause  providing  for  its  termination  may  be  annulled  by  one 
of  the  parties  under  certain  circumstances.  As  between  the  nations 
it  is  in  its  nature  a  contract,  and  if  the  consideration  fail,  for  example, 
or  if  its  important  provisions  be  broken  by  one  party,  the  other  may, 
at  its  option,  declare  it  terminated.     The  United  States  have  so  held 


HOOPER  V.  UNITED  STATES  359 

in  regard  to  the  Clayton-Bulwer  treaty,  as  to  which  Mr.  Frelinghuy- 
sen,  then  Secretary  of  State,  wrote  Mr.  Hall,  minister  in  Central 
America   (July  19,  1884)  : 

The  Clayton-Biilwer  treaty  was  voidable  at  the  option  of  the 
United  States.  This,  I  think,  has  been  demonstrated  fully  on  two 
grounds.  First,  that  the  consideration  of  the  treaty  having  failed, 
its  object  never  having  been  accomplished,  the  United  States  did 
not  receive  that  for  which  they  covenanted ;  and,  second,  that 
Great  Britain  has  persistently  violated  her  agreement  not  to  col- 
onize the  Central  American  coast. 

Here  concur  two  clear  reasons  for  annulment,  failure  of  considera- 
tion and  an  active  breach  of  contract. 

Abrogation  of  a  treaty  may  occur  by  change  of  circumstances,  as : 

When  a  state  of  things  wliich  was  the  basis  of  the  treaty,  and 
one  of  its  tacit  conditions,  no  longer  exists.  In  most  of  the  old 
treaties  were  inserted  the  clausula  rebus  sic  stantibus,  by  which 
the  treaty  might  be  construed  as  abrogated  when  material  cir- 
cumstances on  which  it  rested  changed.  To  work  this  effect  it  is 
not  necessary  that  the  facts  alleged  to  have  changed  should  be 
material  conditions.  It  is  enough  if  they  were  strong  induce- 
ments to  the  party  asking  abrogation. 

The  maxim  " C onvcntio  omnis  intelligitur  rebus  sic  stantibus" 
is  held  to  apply  to  all  cases  in  which  the  reason  for  a  treaty  has 
failed,  or  there  has  been  such  a  change  of  circumstances  as  to 
make  its  performance  impracticable  except  at  an  unreasonable 
sacrifice.     (Wharton's  Com.  Am.  Law.,  §  161.) 

Treaties,  like  other  contracts,  are  violated  when  one  party  neg- 
lects or  refuses  to  do  that  which  moved  the  other  party  to  engage 
in  the  transaction.  .  .  .  When  a  treaty  is  violated  by  one 
party  in  one  or  more  of  its  articles,  the  other  can  regard  it  as 
broken  and  demand  redress,  or  can  still  require  its  observance. 
(Woolsey,  §   112.) 

The  United  States  annulled,  or  at  least  attempted  to  annul,  the 
treaties  with  France  upon  the  grounds,  stated  in  the  preamble  of  the 
statute,  that  the  treaties  had  been  repeatedly  violated  by  France,  that 
the  claims  of  the  United  States  for  reparation  of  the  injuries  committed 
against  them  had  been  refused,  that  attempts  to  negotiate  had  been 
repelled  with  indignity  and  that  there  was  still  being  pursued  against 
this  country  a  system  of  "predatory  violence  infracting  the  said  treaties 
and  hostile  to  the  rights  of  a  free  and  independent  nation."     Such 


360  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

were  the  charges  upon  which  was  based  the  enactment  that  "the 
United  States  are  of  right  freed  and  exonerated  from  the  stipulations 
of  the  treaty  and  of  the  consular  convention  heretofore  concluded 
between  the  United  States  and  France,  and  that  the  same  shall  not 
henceforth  be  regarded  as  legally  obligatory  on  the  Government  or 
citizens  of  the  United  States." 

The  treaties  therefore  ceased  to  be  a  part  of  the  supreme  law  of  the 
land,  and  when  Chief-Justice  Marshall  stated,  in  July,  1799  (Chirac 
V.  Chirac,  2  Wheaton,  272),  that  there  was  no  treaty  in  existence 
between  the  two  nations,  he  meant  only  that  within  the  jurisdiction 
of  the  Constitution  the  treaties  had  ceased  to  exist,  and  did  not  mean 
to  decide,  what  it  was  exclusively  within  the  power  of  the  political 
branch  of  the  Government  to  decide,  that,  as  a  contract  between  two 
nations,  the  treaties  had  ceased  to  exist  by  the  act  of  one  party,  a  result 
which  the  French  ministers  afterwards  said  could  be  reached  only  by 
a  successful  war. 

The  only  question  we  have  now  to  consider  is  that  of  the  interna- 
tional relation.  The  annulling  act  issued  from  competent  authority 
and  was  the  official  act  of  the  Government  of  the  United  States.  So 
far  as  it  was  within  the  power  of  one  party  to  abrogate  these  treaties 
it  was  indisputably  done  by  the  act  of  July  7,  1798.  Notwithstanding 
this  statute,  did  not  the  treaties  remain  in  effect  to  this  extent,  if  no 
further,  that  they  furnish  a  scale  by  which  the  acts  of  France,  which 
we  are  charged  to  examine,  are  to  be  weighed ;  and  in  considering  the 
legality  of  those  acts  are  we  not  to  follow  the  treaties  where  they 
vary  the  law  of  nations?  The  claimants  in  very  learned  and  philosoph- 
ical arguments  contend  for  the  affirmative. 

In  the  first  place  we  are  referred  by  them  to  the  course  of  the 
Executive ;  this,  it  is  said,  is  binding  upon  the  judiciary,  and  is  favor- 
able to  their  contention.     This  position  we  will  first  examine. 

In  1829  the  Supreme  Court  had  occasion  to  construe  the  treaties 
relating  to  the  purchase  of  Louisiana,  particularly  that  of  San  Ilde- 
fonso.  The  Executive  had  already  given  an  interpretation  to  that 
instrument,  and  Marshall,  Ch.  J.,  who  delivered  the  opinion  of  the 
court,  said  on  this  point  (Foster  et  al.  v.  Neilson,  2  Peters,  253)  : 

In  a  controversy  between  two  nations  concerning  national  boun- 
dary, it  is  scarcely  possible  that  the  courts  of  either  should  refuse 
to  abide  by  the  measures  adopted  by  its  own  Government.  There 
being  no  common  tribunal  to  decide  between  them,  each  deter- 


HOOPER  V.  UNITED  STATES  361 

mines  for  itself  on  its  own  rights,  and  if  they  can  not  adjust  their 
differences  peaceably,  the  right  remains  with  the  strongest.  The 
judiciary  is  not  that  department  of  the  Government  to  which  the 
assertion  of  its  interests  against  foreign  powers  is  confided ;  and 
its  duty  commonly  is  to  decide  upon  individual  rights,  according 
to  those  principles  which  the  political  departments  of  the  nation 
have  established.  If  the  course  of  the  nation  has  been  a  plain 
one,  its  courts  would  hesitate  to  pronounce  it  erroneous.  We 
think,  then,  however  individual  judges  might  construe  the  treaty 
of  San  Ildefonso,  it  is  the  province  of  the  court  to  conform  its 
decisions  to  the  will  of  the  legislature  if  that  will  has  been  clearly 
expressed  (p.  307). 

In  United  States  v.  Arredondo  (6  Peters,  711),  and  in  Garcia  v. 
Lee  (12  Peters,  511),  this  principle  was  acknowledged  and  affirmed, 
while  later  in  Williams  v.  Suffolk  Insurance  Company  (13  Peters, 
415),  the  court  said  as  to  the  recognition  of  Buenos  Ayres  (p.  420)  : 

And  can  there  be  any  doubt  that  when  the  Executive  branch  of 
the  Government,  which  is  charged  with  our  foreign  relations, 
shall  in  its  correspondence  with  a  foreign  nation  assume  a  fact 
in  regard  to  the  sovereignty  of  any  island  or  country,  it  is  con- 
clusive on  the  judicial  department?  And  in  this  view  it  is  not 
material  to  inquire,  nor  is  it  the  province  of  the  court  to  deter- 
mine, whether  the  Executive  be  right  or  wrong.  It  is  enough  to 
know  that  in  the  exercise  of  his  constitutional  functions  he  has 
decided  the  question.  Having  done  this  under  the  responsibilities 
which  belong  to  him  it  is  obligatory  on  the  people  and  Govern- 
ment of  the  Union.  ...  In  the  cases  of  Foster  v.  Neilson 
(2  Peters,  253,  307),  and  Garcia  v.  Lee  (12  Peters,  511),  this 
court  have  laid  down  the  rule  that  the  action  of  the  political 
branches  of  the  Government  in  a  matter  that  belongs  to  them  is 
conclusive. 

We  find  in  Phillips  v.  Payne  an  even  stronger  affirmance  of  this 
position  when  tlie  court  say  that  in  cases  like  it  "the  judicial  is  bound 
to  follow  the  action  of  the  political  department  of  the  Government  and 
is  concluded  by  it"  (92  U.  S.  130). 

The  action  of  the  Executive  is,  then,  conclusive  upon  the  judiciary 
when  that  action  is  taken  within  the  jurisdiction  given  by  the  Constitu- 
tion. That  instrument  marks  out  with  marvelous  clearness  and  fore- 
sight the  duties  assigned  to  each  of  the  three  branches  of  Government 
therein  created ;  within  its  own  domain  each  of  these  branches  is 
supreme,  the  executive  no  less  than  the  legislative,  the  legislative  no 


362  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

less  than  the  judiciary,  and  the  judiciary  no  less  than  either  of  the 
other  two.  How  does  this  rule  apply  to  the  cases  now  before  us? 
The  legislature,  with  the  President  who  approved  the  bill,  have  an- 
nulled the  treaties  to  the  extent  of  whatever  power  they  may  have  had 
in  the  premises,  which  is  all  the  power  possessed  by  the  United  States 
over  the  subject-matter.  Do  subsequent  acts  of  the  Executive  alone 
under  these  circumstances,  acts  done  in  an  effort  to  procure  compen- 
sation for  injured  citizens,  statements  made  in  positions  assumed  in  a 
negotiation,  many  of  them  perhaps  taken  argumentatively,  others  per- 
haps advanced  in  an  effort  to  reach  a  middle  ground  upon  which  both 
parties  could  stand  and  which  would  result  in  substantial  advantage 
to  the  nation  and  its  individual  citizens ;  do  such  acts,  statements,  or 
positions  necessarily  bind  us  here? 

The  statute  which  gives  us  all  the  jurisdiction  we  have  over  these 
claims  requires  us  to  examine,  not  those  claims  which  the  United 
States  advanced,  but  those  claims  of  specified  classes  which  were 
"valid"  "upon  the  French  Government."  It  can  not  be  seriously  con- 
tended that  because  the  Executive  pressed  a  claim  that  the  claim  was 
therefore  "valid"  as  between  the  nations.  The  Act  clears  any  doubt 
on  this  point,  if  there  could  be  any,  by  prescribing  the  test  we  are  to 
apply  in  ascertaining  the  validity  of  a  claim ;  that  test  is  "the  rules  of 
law  municipal  and  international  and  the  treaties  of  the  United  States 
applicable  to  the  same." 

The  distinction  we  have  heretofore  made  must  be  emphasized 
between  the  position  and  jurisdiction  of  this  court  under  this  very 
exceptional  statute,  and  their  position  and  jurisdiction,  or  those  of  any 
other  court  of  the  United  States,  when  acting  under  general  laws, 
whether  statutory  or  unwritten. 

Because  the  President  urged  a  claim  upon  France  it  did  not  neces- 
sarily become  as  between  France  and  the  United  States  a  "valid" 
claim.  The  rule  as  to  the  effect  of  Executive  decision  applies  as  well 
in  France  as  in  the  United  States ;  France  resisting  the  claim  may  con- 
tend with  equal  force  that  her  position  is  correct,  and  yet  one  of  the 
parties  to  the  dispute  must  be  wrong.  This  reductio  ad  absiirduni 
seems  hardly  necessary,  and  yet  it  serves  to  illustrate  the  distinction 
we  seek  to  make  clear  as  to  this  court's  peculiar  jurisdiction.  Sup- 
pose the  decision  of  the  Executive,  even  in  the  case  assumed,  be  bind- 
ing upon  the  judiciary  administering  the  law  within  the  United  States, 
and  the  authorities  do  not  go  to  this  extent,  still  it  does  not  follow  that 


HOOPER  V.  UNITED  STATES  363 

snch  a  decision  upon  any  of  these  claims  is  binding  upon  us  now.  We 
are  instructed  to  discover,  not  what  the  Executive  beheved  or  con- 
tended for  or  argued,  but  what  claims  were  in  fact  and  in  law  "valid" 
as  against  France,  and  valid  by  the  rules  of  law,  municipal  and  inter- 
national, and  the  treaties. 

The  contention  has,  however,  other  aspects,  which  must  have  serious 
examination ;  and  it  therefore  becomes  necessary  to  see  what  was  the 
contention  of  this  Government  as  to  the  treaty  rules  after  the  passage 
of  the  annulling  statute.  For  this  purpose  we  must  again  turn  to  the 
correspondence. 

It  is  well  to  bear  in  mind  that  the  question  of  the  guaranty  had 
well  nigh  been  eliminated  from  discussion.  France  had  never  formally 
asked  its  enforcement;  on  the  contrary,  had  preferred  that  we  should 
remain  at  least  nominally  neutral  that  she  might  reap  the  benefit  of 
our  food  supply.  Monroe  had  feared  that  too  strong  a  position  on  our 
part  might  bring  about  a  demand  for  the  aid  pledged ;  but  Pickering 
had  no  apprehension,  and  clearly  regarded  the  obligation  as  without 
practical  danger.  Fear  of  the  guaranty  hampered  our  officers;  but 
the  real  practical  difficulty  on  the  French  side  was  the  Jay  treaty;  on 
ours,  the  spoliations. 

Monroe  was  dismissed ;  Pinckney  was  not  received ;  the  Pinckney. 
Marshall,  Gerry  mission  was  not  officially  recognized,  and  they  had 
returned  home,  when,  in  October,  1799.  Mr.  Pickering,  Secretary  of 
State,  addressed  to  Messrs.  Ellsworth,  Davie,  and  Vans  Murray,  the 
newly  appointed  ministers  to  France,  their  instructions,  in  which  under 
thirty  different  heads,  concluding  with  seven  ultimata  he  set  forth  the 
position  of  the  United  States.  He  told  them  that  the  conduct  of 
France  would  well  have  justified  an  immediate  declaration  of  war,  but 
desirous  of  maintaining  peace  and  being  willing  to  leave  open  the  door 
of  reconciliation,  the  "United  States  contented  themselves  with  pre- 
parations for  defense,  and  measures  calculated  to  protect  their  com- 
merce" (Doc.  102,  p.  561).  The  claims  for  "spoliation"  are  to  be 
advanced  immediately  as  an  indispensable  condition  of  a  treaty,  and 
all  captures  and  condemnations  are  to  be  deemed  "irregular  or  illegal 
when  contrary  to  the  law  of  nations  generally  received  and  acknowl- 
edged in  Europe,  and  to  the  stipulations  in  the  treaty  of  amity  and 
commerce  of  the  6th  of  February,  1778,  fairly  and  ingenuously  inter- 
preted, while  that  treaty  remained  in  force,  especially  when  made  and 
pronounced." 


364  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

In  this  instruction,  then,  Mr.  Pickering  draws  the  line  very  dis- 
tinctly between  the  standard  of  demand  as  to  claims  arising  prior  to 
the  annulling  statute  and  those  founded  upon  acts  committed  subse- 
quent thereto.    Further  on  he  says  (ibid.,  p.  570)  : 

The  seventeenth  and  twenty-second  articles  of  the  commercial 
treaty  between  the  United  States  and  France  of  February  6,  1778, 
have  been  the  source  of  much  altercation  between  the  two  nations 
during  the  present  war.  The  dissolution  of  that  and  our  other 
treaties  with  France  leaves  us  at  liberty  with  respect  to  future 
arrangements ;  with  the  exception  of  the  now  preferable  right 
secured  to  Great  Britain  by  the  twenty-fifth  article  of  the  treaty 
of  amity  and  commerce.  In  that  article  we  promise  mutually  that 
while  we  continue  in  amity,  neither  party  will  in  future  make  any 
treaty  that  shall  be  inconsistent  with  that  article  or  the  one  pre- 
ceding it.  We  can  not,  therefore,  renew  with  France  the  seven- 
teenth and  twenty-second  articles  of  the  treaty  of  1778.  Her 
aggressions,  which  occasioned  the  dissolution  of  that  treaty  have 
deprived  her  of  the  priority  of  rights  and  advantages  therein 
stipulated. 

He  speaks  of  the  "dissolution"  of  the  treaties  as  of  an  existing  fact, 
says  the  United  States  can  make  no  treaty,  that  is,  no  new  treaty 
inconsistent  with  the  Jay  treaty,  that  therefore  they  can  not  "renew" — 
note  the  word — certain  articles  of  the  French  treaty;  in  short,  the 
whole  instruction  is  founded  upon  an  admission  at  least,  if  not  an 
assertion,  that  the  treaties  no  longer  were  in  force. 

The  newly-appointed  ministers,  acting  under  these  instructions, 
opened  negotiations  by  proposing  to  arrange,  first,  claims  of  citizens 
of  either  nation,  whether  founded  on  contract,  treaty,  or  the  law  of 
nations,  and  then,  to  stipulate  for  reciprocity  and  freedom  of  commer- 
cial intercourse  (ibid.,  p.  580).  The  French,  however,  thought  the 
first  object  of  negotiation  should  be  "the  determination  of  the  regula- 
tions and  the  steps  to  be  followed  for  the  estimation  and  indemnifica- 
tion of  injuries  for  which  either  nation  may  make  claim  for  itself,  or 
for  any  of  its  citizens.  And  the  second  object  is  to  assure  the  execu- 
tion of  treaties  of  friendship  and  commerce  made  between  the  two 
nations"  (ibid.,  p.  581).  We  have  already  so  fully  considered  the 
details  of  this  long  negotiation  (21  C.  Cls.  340  et  seq.)  that  they  need 
not  now  be  repeated.  A  careful  rereading  of  all  the  correspondence 
which  we  have  been  able  to  obtain  on  this  subject  but  confirms  our 
previous  conclusion  that — 


HOOPER  V.  UNITED  STATES  365 

Starting  under  their  instructions,  events  had  forced  the  minis- 
ters to  offer  unHmited  recognition  of  the  treaties  of  1778,  coupled 
with  a  pecuniary  equivalent  to  extinguish  in  the  future  their  most 
onerous  provisions ;  even  this  was  not  accepted,  and  the  French, 
returning  to  their  original  ground,  said  that  no  indemnity  could 
be  granted  unless  the  treaties  were  recognized  without  qualifica- 
tion as  to  the  future,  and  this  they  said  with  the  avowed  object  of 
avoiding  the  payment  of  indemnity. 

The  American  ministers  recognized  that  the  French  contention  had 
substantial  value,  so  much  so  that  they  offered  8,000,000  francs  to 
settle  it;  but  they  did  not  recognize  that  it  was  correct  in  fact  or  law, 
or  that  the  annulling  act  was  without  effect.  On  the  contrary  they 
argued : 

A  treaty  being  a  mutual  compact,  a  palpable  violation  of  it  by 
one  party  did,  by  the  law  of  nature  and  of  nations,  leave  it  op- 
tional with  the  other  to  renounce  and  declare  the  sam^e  to  be  no 
longer  obligatory.  .  .  .  For  a  wrong  decision  it  would 
doubtless  be  responsible  to  the  injured  party,  and  might  give  cause 
for  war ;  but  even  in  such  case,  its  act  of  public  renunciation  being 
an  act  within  its  competence  would  not  be  a  void  but  a  valid  act, 
and  other  nations  whose  rights  might  thereby  be  beneficially 
affected  would  so  regard  it.     (Doc.  102,  p.  612.) 

Finally,  the  second  article  of  the  treaty  of  1800,  as  signed  in  Paris, 
expressly  stated  that  the  ministers  plenipotentiary  of  the  two  parties 
were  not  able  to  agree  respecting  either  the  treaties  or  indemnities. 
These  points  then  remained  as  they  were  at  the  opening  of  the 
negotiation. 

We  fail  to  find  that  the  Executive  did,  after  the  passage  of  the 
annulling  statute,  recognize  the  existing  force  of  the  treaties  as  an 
international  obligation,  whatever  value  may  have  been  accorded  to 
the  claim  of  France  that  one  party  was  without  power  to  abrogate 
them. 

The  course  of  the  Executive  in  the  long  contentions  with  France  is 
not  binding  upon  us  now  under  the  jurisdiction  given  by  the  statute 
of  January,  1885.  That  statute  grants  a  very  peculiar  power,  imposes 
upon  us  a  very  original  duty — that  of  examining  in  the  light  of  law, 
municipal  and  international,  and  in  the  light  of  the  treaties,  the  validity 
of  the  claims  of  this  Government  against  that  of  France.  Such  a 
grant  of  jurisdictional  power  necessarily  negatives  any  binding  pre- 


366  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

sumption  founded  upon  Executive  action.  The  President,  individ- 
ually and  through  the  Secretary  of  State,  expressly  and  repeatedly 
demanded  satisfaction  of  the  spoliation  claims.  This  was  of  course 
known  to  the  legislature  which  directed  us  to  investigate  these  very 
claims.  The  Congress  does  not  do  a  vain  act,  and  to  require  us  to 
examine  the  validity  of  claims  under  a  rule  of  law  which  presupposes 
them  to  be  valid  because  the  Executive  urged  them  in  diplomatic 
negotiation  would  be  vain.  The  intention  of  the  statute  is  that  we 
shall  not  be  concluded  by  the  President's  position  in  these  negotiations, 
but  shall,  under  the  standard  set  for  us,  inquire  afresh  as  to  the  claims' 
"validity"  against  Erance.  Even  if  this  were  not  so,  still  there  is 
nothing  in  the  action  of  the  Executive,  after  the  act  of  1798,  tending 
to  show  an  intention  to  recognize  the  continuing  existence  of  the 
treaties.  On  the  contrary,  the  whole  argument  proceeded  upon  the 
opposite   hypothesis. 

Claimants  contend  that  not  the  act  of  1798  but  the  agreement  to 
expunge  the  second  article  of  the  treaty  of  1800  terminated  the  treaties 
of  1778.  The  rescission  of  that  article  vmdoubtedly  terminated  the  dis- 
pute as  to  the  existence  of  these  treaties  and  removed  that  dispute 
from  the  forum  of  international  discussion.  We  are  not  prepared  to 
admit  that  it  recognized  as  valid  the  contention  of  France  as  to  the 
treaties,  although  it  recognized  that  the  contention  had  substantial 
value.  A  claim  may  be  admitted  to  have  value  for  purposes  of  negotia- 
tion or  compromise  without  an  admission  of  its  validity  in  fact  or  law. 
This  is  true  in  private  affairs,  and  is  especially  true  in  diplomacy 
where  questions  of  national  pride,  tradition,  custom,  and  pique  have 
to  be  considered  most  carefully  and  often  are  of  most  serious  impor- 
tance. 

Counsel  urge  that  France  insisting  the  treaties  remained  in  force 
should  be  bound  by  them,  and  they  make  the  apt  illustration  that  if 
the  two  nations  had  agreed  at  the  time  upon  mutual  indemnities 
France  would  have  been  held  to  the  treaty  rules.  This  assumption  is 
probably  correct.  France  having  obtained  the  benefit  she  desired 
would  in  justice  be  bound  by  the  corresponding  obligation.  "Qui 
sentit  commodiini  seritire  debet  et  onus."  But  that  is  not  this  case, 
for  France  entirely  failed  to  secure  a  recognition  of  the  continuing 
force  of  the  treaty. 

The  treaty  of  1800  contained  a  provision  that  "property  captured 
and  not  yet  definitively  condemned"  should  be  restored  upon  produc- 


HOOPER  V.  UNITED  STATES  367 

tion  alone  of  the  passport  of  1778.  These  captures  must,  in  almost 
all  instances  if  not  in  all,  have  taken  place  subsequent  to  the  annulling 
statute,  and  it  is  urged  with  much  force  that  if  the  treaties  were  non- 
existent France  was  entitled  to  demand  the  proofs  required  by  the 
general  law  of  nations ;  as  she  expressly  yielded  this  point  and,  as 
to  these  cases,  agreed  to  abide  by  the  treaty  rule,  therefore  it  can  not 
be  doubted  (urge  counsel)  that  had  these  claims  now  before  us  been 
taken  into  the  treaty  of  1800  they  would  have  been  subjected  to  the 
same  standard. 

Perhaps  they  would  have  been.  France,  obtaining  treaty  rccooni- 
tion,  would  have  been  bound  by  treaty  rules ;  but  this  did  not  occur,  and 
as  France  failed  to  obtain  treaty  recognition  is  she  therefore  to  be 
bound  by  treaty  rules  because  in  one  instance  she  made  a  special 
exception  in  specific  terms  ?  We  think  not.  A  treaty  changes  the  law 
of  nations  only  in  so  far  as  it  contains  provisions  to  that  effect.  The 
parties  may  covenant  that  as  between  themselves  the  law  of  nations 
shall  not  apply  in  particular  instances ;  except  in  those  instances  that 
law  remains  in  force. 

The  treaties  had  served  their  purpose ;  the  conditions  which  they 
contemplated  had  changed.  Whatever  may  have  been  the  justice  of 
French  complaints  of  our  course  with  Great  Britain,  and  whatever 
may  have  been  her  rights  under  the  circumstances,  still  she  had  so 
invaded  the  rights  of  the  United  States  to  free  commerce  in  innocent 
cargoes  upon  the  high  seas,  that  a  case  was  presented  of  such  failure 
of  consideration,  and  of  such  active  infraction  of  the  treaties,  that  this 
country  was  in  a  position  to  proclaim  them  ended. 

Free  ships,  free  goods,  had  become  a  dead  letter.  The  passport 
which  the  treaty  prescribed  as  a  sufficient  protection  was  disregarded, 
and  various  other  aggressions  upon  the  shipping  of  the  United  States 
were  committed ;  aggressions  admittedly  forbidden  by  the  treaty 
provisions. 

We  are  of  opinion  that  the  circumstances  justified  the  United  States 
in  annulling  the  treaties  of  1778;  that  the  act  was  a  valid  one,  not  only 
as  a  municipal  statute,  but  as  between  the  nations  :  and  that  thereafter 
the  compacts  were  ended.  We  fail  to  find  any  agreement  by  France 
as  to  these  claims  to  submit  to  the  treaty  rules  after  July  7,  1798,  the 
treaties  not  being  recognized  by  us,  and  we  conclude  that  the  validity 
of  claims  not  expressly  mentioned  in  the  treaty  of  1800,  wliich  arose 
after  July  7,  1798,  is  to  be  ascertained  by  the  principles  of  the  law  of 


368  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

nations  recognized  at  that  time,  and  not  by  exceptional  provisions 
found  in  the  treaties  of  1778. 

Insurance  to  cover  is  that  amount  of  insurance  which  in  case  of 
accident  will  entirely  reimburse  the  insured  for  his  loss.  It  includes 
not  only  the  value  of  the  property,  but  also  the  cost  of  the  insurance 
procured  to  protect  it. 

Phillips  in  his  work  on  insurance  thus  states  the  question  argued 
here  (§  1221): 

The  premium  on  the  premium  is  to  be  included  in  computing 
the  amount  to  be  insured  in  order  to  cover  the  interest  and  replace 
the  exact  value  of  the  subject  in  case  of  total  loss. 

Some  of  the  claimants  ask  that  they  be  allowed  unpaid  premiums 
of  insurance  as  an  element  of  the  value  of  property  lost,  and  if  so 
that  such  premium  be  allowed  upon  the  theory  of  insurance  to  cover. 

The  able  arguments  and  briefs  of  counsel  for  claimants  on  these 
questions  have  been  listened  to  and  examined  with  great  care.  What- 
ever difficulty  we  might  find  were  the  matter  here  presented  for  the 
first  time  is  removed  by  the  precedents  established  by  the  Supreme 
Court.  In  the  Anna  Maria  (2  Wharton,  325),  the  court  allowed  "the 
value  of  the  vessel  and  the  prime  cost  of  the  cargo  with  all  charges, 
and  the  premium  of  insurance,  where  it  has  been  paid,  with  interest." 
In  Malley  v.  Shattuck  (2  Cranch,  458),  the  court  said  (citing  The 
Charming  Betsy)  : 

In  pursuance  of  that  rule  the  rejection  of  the  premium  for 
insurance,  that  premium  not  having  been  paid,  is  approved ;  but 
the  rejection  of  the  claim  for  outfits  of  the  vessel  and  the  neces- 
sary advance  to  the  crew  is  disapproved.  Although  the  general 
terms  used  in  the  case  of  The  Charming  Betsy  would  seem  to 
exclude  this  item  from  the  account,  yet  the  particular  question 
was  not  under  the  consideration  of  the  court,  and  it  is  conceived 
to  stand  on  the  same  principle  with  the  premium  of  the  insurance, 
if  actually  paid,  which  was  expressly  allowed. 

Following  the  Supreme  Court  we  shall  allow  premiums  of  insurance 
when  actually  paid,  and  not  otherwise. 

In  cases  heretofore  submitted  a  question  arose  as  to  the  effect  upon 
claimants'  rights  of  the  following  facts,  or  either  of  them,  should  they 
or  either  of  them  be  found  to  exist : 

A.  That  the  vessel  acted  as  a  privateer. 


HOOPER  V.  UNITED  STATES  369 

B.  That  the  vessel  possessed  the  license  or  authority  described  in 
either  the  Act  of  June  25,  1798,  or  in  the  Act  of  July  9,  1798,  author- 
izing the  class  of  seizure  described  in  those  acts  or  in  the  Act  of  May 
28,  1798. 

These  questions  were  ordered  to  be  and  have  been  reargued. 

The  provisions  of  the  three  laws  above  recited  are  very  different  in 
effect,  that  of  the  latest  date  being  the  one  most  important  in  the  con- 
sideration of  these  cases.  The  Act  of  May  28  (1  Stat.  L.  561),  "to 
more  effectually  protect  the  commerce  and  coasts  of  the  United  States" 
empowered  the  President  to  give  certain  orders  to  the  armed  vessels  of 
the  nation  and  contained  no  allusion  to  vessels  owned  by  individuals. 
The  Act  of  June  25  (ibid.,  p.  572)  authorized  "the  defense  of  the 
merchant  vessels  of  the  United  States  against  French  depredations," 
and  to  that  end  allowed  the  commanders  and  crews  of  such  vessels  to 
"oppose  and  defend  against  any  search,  restraint,  or  seizure"  attempted 
by  a  French  vessel,  to  "repel  by  force  any  assault  or  hostility"  on  the 
part  of  such  French  vessel,  to  "subdue  and  capture  the  same"  and  to 
retake  any  American  vessel  captured  by  the  French. 

The  Act  of  July  9  (ibid.,  p.  578)  gave  to  private  armed  vessels 
specially  commissioned  the  same  license  and  authority  "for  the  subdu- 
ing, seizing,  and  capturing  any  armed  French  vessel,  and  for  the 
recapture  of  the  vessels,  goods,  and  effects  of  the  people  of  the  United 
States,  as  the  public  armed  vessels  of  the  United  States  may  by  law 
have"  (§2).  This  statute,  therefore,  authorized  private  armed  vessels 
to  take  any  armed  French  vessel  "found  within  the  jurisdictional  limits 
of  the  United  States  or  elsewhere  on  the  high  seas"  (§  1),  and  to 
recapture  American  vessels  taken  by  the  French.  (See  Acts  of  May 
28  and  June  25,  1798.) 

Many  of  the  vessels  whose  cases  are  before  us  carried  armament 
of  some  kind,  and  several  are  shown  to  have  had  a  special  license, 
commission,  or  authority  issued  probably  by  virtue  of  the  power  given 
the  President  in  the  last  two  acts  of  Congress. 

The  marked  distinction  between  the  act  of  June  and  that  of  July  is 
in  this :  The  former  permitted  defense  only,  except  in  the  matter  of 
recapture,  while  the  latter  authorized  attack,  but  attack  only  on  armed 
vessels.  Nowhere  in  the  statutes  is  there  any  permission  given  to 
molest  French  merchantmen,  although  France  was  then  engaged  in 
the  acts  of  illegal  seizure  and  condemnation  from  which  the  spoliation 
claims  arose.     Defendants  urge  that  the  arming  of  a  merchantman 


370  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

and  the  presence  on  board  of  a  special  license  under  the  acts  cited 
destroyed  any  right  of  recovery  as  against  France  and  consequently 
as  against  the  United  States. 

We  have  held  (Gray's  Case,  21  C.  Cls.  375)  as  to  the  relations 
between  the  two  countries  during  the  period  in  question  that  "no  such 
war  existed  as  operated  to  abrogate  treaties,  to  suspend  private  rights, 
or  to  authorize  indiscriminate  seizures  and  condemnations ;  that,  in 
short,  there  vvas  no  public  general  war,  but  limited  war,  in  its  nature 
similar  to  a  prolonged  series  of  reprisals."  There  was  not  what 
Wheaton  calls  "a  perfect  war,"  but  a  war  "limited  as  to  places,  per- 
sons, and  things" ;  the  Congress  authorized  hostilities,  but  only  on  the 
high  seas  or  within  the  jurisdictional  limits  of  the  United  States,  and 
then  only  by  certain  specified  vessels  upon  certain  specified  vessels. 
As  far  as  Congress  authorized  and  tolerated  it  so  far  might  we  proceed 
in  hostile  operations,  and  the  word  "enemy"  goes  the  full  length  of 
this  qualified  war  and  no  further  (21  C.  Cls.  371).  The  hostilities 
were  confined  on  the  side  of  the  United  States  to  attack  on  French 
armed  ships  and  to  recapture  of  our  own.  The  capture  of  enemy  mer- 
cantile shipping  is  an  important  mark  of  a  state  of  war,  one  of  its 
principal  incidents,  and  it  is  significant  of  the  relations  between  the 
two  Governments  that  not  a  movement  was  made  by  Congress  or  the 
Executive  in  this  direction. 

A  privateer  is  an  armed  vessel  belonging  to  one  or  more  private 
individuals,  licensed  by  Government  to  take  prizes  from  an  enemy; 
its  authority  in  this  regard  must  depend  altogether  upon  the  extent  of 
the  commission  issued  to  it,  and  is  qualified  and  limited  by  the  laws 
under  which  the  commission  is  issued.  (The  Thomas  Gibbons,  8 
Cranch,  421.) 

Letters  of  marque  and  reprisal  may  theoretically  issue  in  time  of 
peace  (articles  of  Confederation  signed  1778,  art.  9),  as  they  form  a 
"mode  of  redress  for  some  specific  injury  which  is  considered  to  be 
compatible  with  a  state  of  peace  and  permitted  by  the  law  of  nations" 
(Kent,  vol.  1,  p.  61).  The  commission  authorizes  "the  seizure  of  the 
property  of  the  subjects  as  well  as  of  the  sovereign  of  the  offending 
nation  and  to  bring  it  in  to  be  detained  as  a  pledge,  or  disposed  of 
under  judicial  sanction  in  like  manner  as  if  it  were  a  process  of  dis- 
tress under  national  authority  for  some  debt  or  duty  withheld"  (ibid.). 
Speaking  very  technically,  a  letter  of  marque  is  merely  a  permission 
to  pass  the  frontier,  while  a  letter  of  reprisal  authorizes  a  "taking  in 


HOOPER  V.  UNITED  STATES  371 

return,"  a  taking  by  way  of  retaliation,  a  captio  rei  uniiis  in  alterius 
satisfactionem.  The  colloquial  use  together  of  the  two  names,  letter 
of  marque  and  letter  of  reprisals,  leads  sometimes  to  misunderstand- 
ing as  to  the  differing  effect  of  each,  one  being  a  simple  authority  to 
depart,  the  other  an  authority  to  seize  property  in  compensation  for 
an  injury  committed. 

The  Hcenses  or  commissions  of  1798  contained  no  hint  of  intended 
reprisals,  for  no  authority  to  seize  a  French  merchantman  is  contained 
in  them,  although  the  French  had  long  been  capturing  our  commercial 
marine.  There  was,  however,  express  authority  to  seize  armed  vessels 
and  to  recapture  American  vessels ;  that  is,  in  its  essence,  authority  to 
defend,  not  to  attack. 

Within  the  limits  prescribed  by  the  Congress  there  was  war ;  limited, 
imperfect  war,  not  general  public  war,  but  war  complete  as  to  the 
vessels  engaged  in  it  to  the  extent  only  of  the  powers  given  by  the  Con- 
gress. Following  in  the  path  marked  out  by  the  Supreme  Court  in 
the  prize  cases  which  came  before  them  during  this  period,  and  of 
which  Bas  v.  Tingy  is  a  fair  example,  we  are  led  to  the  conclusion 
that  where  a  private  vessel  was  fitted  for  the  purpose  of  attacking 
armed  French  vessels,  and  of  recapturing  American  vessels  seized,  she 
fell  within  the  rules  of  war,  and  if  captured,  became  legitimate  prize. 
The  relations  of  the  two  nations  being  strained  to  hostilities  within 
certain  distinctly  defined  bounds,  within  those  bounds  the  active  agents 
of  either  Government  were  subject  to  the  rules  of  war,  and  vessels 
intending  to  seize  must  submit  to  seizure. 

It  does  not,  however,  follow  that  every  vessel  having  a  special 
license  under  the  acts  of  1798,  or  every  vessel  having  some  armament 
on  board,  falls  within  this  rule.  Long  within  the  memory  of  men 
now  living,  many  portions  of  the  ocean  since  freely  opened  to  com- 
merce were  infested  by  pirates  who  boarded  peaceful  merchantmen, 
plundered  the  vessels,  and  murdered  the  crews,  or  dragged  them  to 
the  horrors  of  slavery.  The  literature  relating  to  the  early  part  of 
the  century  is  filled  with  anecdotes  based  upon  the  outrages  of  such 
freebooters,  and  the  heroic  deeds  of  those  sent  out  by  the  different 
Governments  to  capture  or  destroy  them.  Vessels  tempting  these 
waters  found  it  advisable  to  carry  some  armament,  so  that  failing 
efficient  convoy,  or  in  case  of  other  accident,  they  might  be  prepared 
to  cope  on  comparatively  equal  terms  with  these  robbers  of  the  sea. 

At  the  particular  period  we  now  are  considering,  to  the  danger  from 


372  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

pirates  in  some  parts  of  the  world  was  added  the  danger  from  French 
privateers  who  acted  in  so  illegal  and  unjustifiable  manner  as  to  call 
from  Lord  Stowell  this  opinion: 

It  has  certainly  been  the  practice  of  this  court,  lately,  to  grant 
salvage  on  recapture  of  neutral  property  out  of  the  hands  of  the 
French,  and  I  see  no  reason  at  the  present  moment  to  depart  from 
it.  I  know  perfectly  well  that  it  is  not  the  modern  practice  of  the 
law  of  nations  to  grant  salvage  on  recapture  of  neutral  vessels, 
and  upon  this  plain  principle,  that  the  liberation  of  a  clear  neutral 
from  the  hand  of  the  enemy  is  no  essential  service  rendered  to  him, 
inasmuch  as  that  same  enemy  would  be  compelled  by  the  tribunals 
of  his  own  country,  after  he  had  carried  the  neutral  into  port,  to 
release  him,  with  costs  and  damages  for  the  injurious  seizure  and 
detention.  This  proceeds  upon  the  supposition  that  those  tribun- 
als would  duly  respect  the  obligations  of  the  law  of  nations ;  a 
presumption  which,  in  the  wars  of  civilized  nations,  each  bellig- 
erent is  bound  to  entertain  in  their  respective  dealings  with  neu- 
trals. But  it  being  notorious  to  all  Europe,  in  the  present  war, 
that  there  has  been  a  constant  struggle  maintained  between  the 
governing  powers  of  France,  for  the  time  being,  and  its  maritime 
tribunals,  which  should  most  outrage  the  rights  of  neutral  prop- 
erty— the  one  by  its  decrees,  or  the  other  by  its  decisions — the 
liberation  of  neutral  property  out  of  their  possession  has  been 
deemed,  not  only  in  the  judgment  of  our  courts,  but  in  that  of 
neutrals  themselves,  a  most  substantial  benefit  conferred  upon 
them,  in  a  delivery  from  danger  against  which  no  clearness  and 
innocence  of  conduct  could  afiford  any  protection.  And  a  salvage 
for  such  service  has  not  only  been  decreed,  but  thankfully  paid, 
ever  since  these  wild  hostilities  have  been  declared  and  practiced 
by  France,  against  all  acknowledged  principles  of  the  law  of 
nations  and  of  natural  justice.  When  these  lawless  and  irregular 
practices  are  shown  to  have  ceased,  the  rule  of  paying  salvage  for 
the  liberation  of  neutral  property  must  cease  likewise. 

No  proof  is  offered  that  the  maritime  tribunals  of  France  have, 
in  any  degree,  corrected  either  the  spirit  or  the  form  of  their 
proceedings  respecting  neutral  property  generally;  and,  there- 
fore, I  shall  not  think  myself  authorized  to  depart  from  the  prac- 
tice that  has  been  pursued,  of  awarding  a  salvage  to  the  captors. 
(The  Onskan,  2  Robinson,  pp.  300,  301.) 

And  later  he  said : 

It  is  certainly  true  that  the  standing  doctrine  of  the  court  has 
been  that  neutral  property,  taken   out  of  the  possession  of  the 


HOOPER  V.  UNITED  STATES  Z7Z 

enemy,  is  not  liable  to  salvage.  It  is  the  doctrine  to  which  the 
court  has  invariably  adhered  till  it  was  forced  out  of  its  course 
by  the  notorious  irregularities  of  the  French  cruisers  and  of  the 
French  Government,  which  proceeded  without  any  pretense  of 
sanction  from  the  law  of  nations,  to  condemn  neutral  property. 
On  these  grounds  it  was  deemed  not  unreasonable  by  neutrals 
themselves  that  salvage  should  be  paid  for  a  deliverance  from 
French  capture.  The  rule  obtained  early  in  the  war,  and  has  con- 
tinued to  the  present  time.  It  is  said  that  a  great  alteration  has 
taken  place  in  the  French  proceedings,  and  that  we  are  now  to 
acknowledge  a  sort  of  return  of  "Satnrnia  regna."  This  court  is 
not  informed,  in  a  satisfactory  manner,  that  any  such  beneficial 
change  has  taken  place  in  the  administration  of  prize  law  in  the 
tribunals  of  France ;  and,  therefore,  it  will  continue  to  make  the 
same  decree  till  the  instructions  of  the  superior  court  shall  estab- 
lish a  different  rule.  (Eleonora  Catharina,  4  Rob.  157.  See  also 
Talbot  V.  Secman,  1  Cranch,  1.) 

In  the  Gulf  of  Mexico  the  danger  of  seizure  by  small  vessels,  tech- 
nically French  privateers,  but  actually  so  irresponsible  to  governing 
power  as  to  be  in  form  only  superior  to  freebooters,  made  the  posses- 
sion of  some  armament  by  an  innocent  trader  a  matter  of  wise  pre- 
caution, if  not  of  necessity,  especially  as  in  some  instances  the  danger 
from  the  French  tribunals  was  nearly  as  great  as  from  the  privateers. 
We  are  told,  for  example,  that  vessels  were  condemned  by  such 
tribunals  because  the  ship's  compass  had  an  English  brand,  because  the 
cooking  utensils  were  of  English  manufacture,  or  because  the  vessel 
was  destined  to  an  English  port.  The  Secretary  of  State  thus  charac- 
terized the  situation : 

American  property  had  even  been  taken  when  in  their  own  ports, 
without  any  pretense,  or  no  other  than  that  they  wanted  it.  At 
the  same  time  their  cruisers  are  guilty  of  wanton  and  barbarous 
excesses,  by  detaining,  plundering,  firing  at,  burning,  and  distress- 
ing American  vessels. 

The  acts  of  the  French  privateers  were  so  illegal  as  to  be  stigma- 
tized as  "piracies"  both  by  Mr.  Pickering  and  in  the  two  Legislative 
Councils  of  France  (Doc.  102,  p.  410). 

As  early  as  June,  1793,  Morris  complains  "of  the  plundering  of  our 
ships,  of  which  complaints  are  daily  made  to  me  and  which  the  present 
Government  of  the  country  is  too  feeble  to  prevent"  {ibid.,  p.  48), 
and  he  writes  to  the  French  minister  "that  it  will  be  very  difficult,  and 


374  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

perhaps  impossible,  to  prevent  your  privateers  from  committing  illegal 
and  outrageous  acts  as  long  as  they  are  permitted  to  bring  into  your 
ports  all  the  American  vessels  laden  with  articles  of  food  for  coun- 
tries at  war  with  France"  (ibid.,  p.  49).  Later  he  informs  the  Secre- 
tary of  State  that  "in  the  present  state  of  the  country  the  laws  are 
but  little  respected ;  and  it  would  seem  as  if  pompous  declarations  of 
the  rights  of  man  were  reiterated  only  to  render  the  daily  violation  of 
them  more  shocking"  (ibid.,  p.  52).  In  October  he  says  "the  courts 
chicane  very  much  here,"  and  he  speaks  of  their  proceedings  as  "iniqui- 
tous" (ibid.,  p.  67).  In  December,  1796  (ibid.,  p.  151),  Major  Mount- 
florence,  in  his  general  report  as  to  American  commercial  interests  in 
France,  says  that  on  the  27th  of  the  preceding  April  power  had  been 
given  to  the  tribunals  of  commerce  in  every  port  of  France  to  take 
cognizance  in  the  first  instance  of  every  matter  relative  to  captures 
at  sea,  with  an  appeal  to  the  civil  tribunals  of  the  different  depart- 
ments, and  with  a  reference  in  certain  instances  to  the  minister  of 
justice. 
He  adds: 

The  tribunals  of  commerce  are  chiefly  composed  of  merchants, 
and  most  of  them  are  directly  or  indirectly  more  or  less  interested 
in  the  fitting  out  of  privateers,  and,  therefore,  are  often  parties 
concerned  in  the  controversies  they  are  to  determine  upon. 

In  illustration  he  cites  the  condemnation  of  the  Royal  Captain,  say- 
ing that  most  of  the  "judges  were  concerned  in  the  capturing  privateer." 
In  January,  1797,  Mr.  Pickering  wrote  to  Mr.  Pinckney  as  follows: 

The  commissioners  and  special  agents  of  the  French  Republic 
in  the  West  Indies  are  destroying  our  commerce  in  the  most 
wanton  manner.  They  have  issued  orders  for  taking  all  American 
vessels  bound  to  or  from  English  ports — not  those  only  which  the 
English  occupy  in  St.  Domingo,  but  those  of  their  own  islands. 
They  condemn  without  the  formality  of  a  trial.  These  orders 
appear  from  the  information  I  have  received  to  have  been  issued 
in  consequence  of  letters  from  Mr.  Adet,  who,  you  will  see  in  his 
note  of  November  15,  said  the  French  armed  vessels  were  not 
merely  to  capture  American  vessels,  but  to  practice  vexations  to- 
wards them ;  and  who,  I  am  further  informed,  wrote  to  the  com- 
missioners that  they  could  not  treat  the  American  vessels  too 
badly.  This  state  of  things  can  not  continue  long.  It  makes  little 
difference  whether  our  vessels  go  voluntarily  to  French  ports  or 
are  carried  in  as  prizes.     In  the  latter  case  they  condemn  without 


HOOPER  V.  UNITED  STATES  375 

ceremony,  and,  in  the  former,  they  forcibly  take  the  cargoes,  here- 
tofore with  promises  of  payment,  which  they  generally  broke; 
and  now,  I  am  told,  without  even  deigning  to  give  their  faithless 
promises  (ibid.,  p.  154). 

In  the  following  February  he  writes  again  to  Pinckney,  saying  (ibid., 
p.  154) : 

The  spoliations  on  our  commerce  by  French  privateers  are  daily 
increasing  in  a  manner  to  set  every  just  principle  at  defiance.  If 
their  acts  were  simply  the  violation  of  our  treaty  with  France  the 
injuries  would  be  comparatively  trifling,  but  their  outrages  extend 
to  the  capture  of  our  vessels  merely  because  going  to  or  from  a 
British  port.  Nay,  more,  they  take  them  when  going  from  a 
neutral  to  a  French  port.  In  truth,  there  is,  in  a  multitude  of 
cases,  little  difference  whether  our  vessels  are  carried  in  as  prizes 
or  go  voluntarily  to  the  French  ports  in  the  islands  for  the  pur- 
poses of  traffic;  the  public  agents  take  the  cargoes  by  force  and 
fix  their  own  terms,  giving  promises  of  distant  payment,  which 
are  seldom  dulv  performed.  With  regard  to  the  vessels  carried 
in  as  prizes,  the  agents  and  tribunals  of  the  French  Government 
act  in  concert  with  the  privateers.  The  captured  are  not  admitted 
to  defend  their  property  before  the  tribunals;  the  proceedings  are 
wholly  ex  parte.  We  can  account  for  such  conduct  only  on  the 
principle  of  plunder,  and  were  not  the  privateers  acting  under  the 
protection  of  commissions  from  the  French  Government,  they 
would  be  pronounced  pirates.  Britain  has  furnished  no  prece- 
dents of  such  abominable  rapine. 

In  April,  he  writes  again  (ibid.,  p.  164)  that  "the  depredations  of 
the  French  in  the  West  Indies  are  continued  with  increased  outrage, 
and  we  have  advices  of  captures  and  condemnations  in  Europe  which 
apply  to  no  principle  heretofore  known  and  acknowledged  in  the  civ- 
ilized world."     (See  also  ibid.,  pp.  166,  171,  173,  174,  177.) 

Citations  of  this  kind  might  be  multiplied,  but  it  seems  useless  to  do 
so,  as  the  situation  is  familiar  history.  Certainly,  under  these  circum- 
stances, some  attempt  at  defense  was  natural  and  excvisable,  if  not 
justifiable. 

Judges  "are  not  to  shut  their  eyes  to  what  is  generally  passing  in 
the  world"  (Blatchford's  Prize  Cases,  p.  448),  nor  as  to  what  has 
already  taken  place.  In  danger  from  native  pirates,  in  danger  from 
French  privateers  often  as  irresponsible  ( Gushing' s  Administrator, 
22  C.  CIs.  1),  the  mere  possession  of  some  armament  by  a  merchantman 
is  devoid  of  marked  significance.    It  is  improbable  that  any  important 


376  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

venture  was  sent  to  sea  without  an  effort  on  the  part  of  the  ship- 
owner to  protect  his  property  and  that  laden  on  his  vessel;  cannon 
enough  or  muskets  enough  he  would  put  on  board  to  give  his  crew 
a  fair  chance  of  escape  from  a  small  force.  The  statute,  however, 
said  that  no  armed  merchantman  should  receive  a  clearance  or  permit, 
or  be  suffered  to  depart  unless  the  owners  and  the  master  gave  bond 
conditioned,  among  other  things,  that  the  vessel  should  not  commit 
any  depredation,  outrage,  unlawful  assault,  or  unprovoked  violence 
upon  the  high  seas  against  the  vessel  of  any  nation  in  amity  with  the 
United  States  (1  Stat.  L.,  p.  573).  Under  this  act  no  vessel  having 
any  armament  could  proceed  to  sea  without  bond  first  given,  and  this 
bond,  being  coupled  in  the  acts  with  the  issuance  of  special  orders 
or  license,  what  more  natural  than  for  the  innocent  merchantman, 
desiring  only  safe  transit  of  a  commercial  venture,  to  receive  in  return 
the  commission  which  the  act  provided  should  be  given  him.  The  Act 
of  July  9  (ibid.,  p.  578)  contains  a  similar  provision,  and  the  result 
of  both  statutes  is  that  no  private  vessel  carrying  armament  could 
proceed  to  sea  without  bond  filed  in  return  for  which  a  commission 
might  be  issued. 

In  our  view  of  the  case  it  is  vital  to  note  the  distinction  between 
armament  for  protection  simply  and  armament  for  attack  upon  armed 
vessels  or  for  attack  upon  captured  American  vessels  necessarily  in 
charge  of  prize  crews.  A  privateer  is  maintained  for  profit;  the  ven- 
ture is  most  speculative  in  its  nature,  bringing  large  returns  for  great 
risk.  Given  the  right  to  prey  upon  the  mercantile  marine,  great  arma- 
ment is  not  necessary,  as  combat  may  be  avoided  by  speed  and  quick- 
ness in  manoeuvre.  The  privateering  authorized  by  the  acts  of  1798 
was  of  no  such  nature ;  not  a  prize  could  be  taken  without  conflict,  for 
only  armed  vessels,  or  vessels  in  charge  of  prize  crews,  could  be  seized; 
not  a  merchantman  was  allowed  to  be  molested.  A  vessel,  then,  fitting 
out  under  the  acts  of  1798  for  the  purpose  of  waging  the  limited  hos- 
tility therein  permitted,  must  have  been  prepared  for  battle ;  must  have 
been  ready  to  wage  war.  She  could  not  mount  a  few  guns  and  carry 
a  few  dozen  muskets,  with  a  small  crew,  when  the  success  of  her 
voyage  depended  upon  the  number  of  well-defended  vessels  she  should 
send  into  port  for  condemnation.  A  vessel  intended  to  act  aggres- 
sively under  the  laws  of  1798  would  have  to  fight  for  every  dollar 
brought  into  the  pockets  of  the  owners,  master,  and  crew,  and,  know- 
ing this,  would  proceed  to  sea  with  an  equipment  sufficient  for  the 
very  serious  work  contemplated. 


HOOPER  V.  UNITED  STATES  377 

One  of  the  vessels  holding  a  commission  under  the  acts  of  1798  was 
a  schooner  of  about  111  tons,  old  measurement.  She  had  a  crew  of 
seven  men,  carried  what  was  called  a  letter  of  marque,  two  guns,  and 
a  cargo  of  merchandise ;  she  was  duly  cleared  on  a  trading  voyage,  with 
instructions  to  the  master  as  to  the  sale  of  the  cargo  and  the  purchase 
of  a  return  venture.  Such  a  vessel  as  this  could  not  have  been  seri- 
ously intended  to  seize  French  armed  vessels  or  captured  American 
vessels  defended  by  French  prize  crews.  Seven  men,  all  told,  were  barely 
enough  to  navigate  the  schooner;  aside  from  the  master,  there  were  but 
three  to  a  watch,  and  on  an  emergency  it  is  extremely  doubtful  whether 
the  total  force  was  sufficient  to  handle  the  two  guns  and  the  vessel  at 
the  same  time.  Possibly  some  defense  might  have  been  made  against 
a  boat-load  of  pirates  putting  off  from  the  shore  while  the  schooner 
lay  becalmed  near  it,  but  it  is  not  within  the  bounds  of  possibility  that 
such  a  vessel,  with  so  slight  a  crew  and  so  insignificant  an  armament, 
should  contemplate  attack  upon  a  well-defended  vessel. 

We  are  told  that  365  vessels,  of  66,691  tonnage,  carrying  6,847  men 
and  2,723  guns,  received  commissions  under  the  acts  of  1798,  prior  to 
March  2,  1799.  The  average  tonnage  per  vessel  was  then  185  tons, 
the  average  crew  16,  and  the  average  armament  7  guns.  On  the  other 
hand,  one  Government  armed  vessel  (taken  for  illustration)  of  190 
tons  burthen  carried  18  guns  and  140  men,  while  another  of  200  tons 
carried  the  same  armament  and  crew.  So  far  as  has  yet  appeared  to 
us,  no  private  armed  merchantman  made  a  single  capture  from  the 
French,  and  we  are  assured  that  no  such  capture  was  made.  So  far 
as  concerns  the  cases  now  before  us,  it  would  be  practically  impossible 
for  such  a  capture  to  be  made,  for  most  of  the  vessels  were  small,  and 
they  were  manned  only  for  ordinary  navigation  and  not  for  war,  with 
an  armament  insufficient  to  cope  with  organized  military  force.  Neither 
seven  nor  even  sixteen  men  is  a  crew  for  a  vessel  intended  to  attack 
French  armed  ships  or  to  recapture  those  manned  by  prize  crews,  and 
no  merchantman  with  so  small  a  crew  and  laden  with  valuable  cargo 
would  undergo  such  risk. 

That  Congress  did  not  contemplate  the  employment  in  attack  of 
small  or  undermanned  vessels  is  shown  by  the  proviso  in  the  act  of 
July  9,  1798,  that  the  bond  should  be  doubled  in  case  "the  vessel  be 
provided  with  more  than  one  hundred  and  fifty  men,"  from  which  an 
inference  may  not  unfairly  be  drawn  that  not  far  from  one  hundred 
and  fifty  was  considered  a  fair  equipment  for  a  vessel  designed  to 


378  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

fight.  We  have  seen  that  the  Government  war  vessels  about  equiva- 
lent in  tonnage  to  the  average  licensed  merchantman  carried  about  one 
hundred  and  forty  men,  and  coupling  this  fact  with  the  act  of  Con- 
gress we  reach  the  result  already  indicated  by  common  sense,  that 
Congress  had  in  mind,  so  far  as  privateers  were  concerned,  fighting 
ships — those  able  to  attack  a  French  privateer  with  reasonable  hope  of 
success,  and  not  vessels  with  insignificant  crew  and  armament,  bound 
on  a  trading  voyage,  and  provided  with  those  slight  means  of  defense 
which  w^ere  at  the  time  ordinarily  carried  by  merchantmen  for  pro- 
tection. 

That  armament,  when  carried  by  strictly  commercial  vessels  bound 
upon  trading  voyages,  was  intended  for  defense  is  shown  by  the  report 
of  the  House  Committee,  made  January  17,  1799  (American  State 
Papers,  Naval  Afifairs,  vol.  1,  p.  69).     They  said: 

Your  committee  begs  leave  to  report  further,  that  about  the 
time  of  the  sailing  of  our  ships  of  war,  and  before  the  merchant 
ships  were  permitted  to  arm  for  their  defense,  our  trade  was  in 
such  jeopardy  at  sea  and  on  the  coast  from  French  privateers, 
that  but  few  vessels  escaped  them ;  that  ruin  stared  in  the  face  all 
concerned  in  shipping,  and  that  it  was  difficult  to  get  property 
insured. 

Hamilton,  then  Secretary  of  the  Treasury,  officially  expressed  the 
opinion  of  his  Government  as  to  armed  merchantmen  in  his  circular 
of  August  4,  1793,  as  follows: 

The  term  privateer  is  understood  not  to  extend  to  vessels  armed 
for  merchandise  and  war,  commonly  called  with  us  letters  of 
marque,  nor.  of  course,  to  vessels  of  war  in  the  immediate  service 
of  the  Government  of  either  of  the  powers  at  war. 

Twelve  days  later  Jefi"erson,  in  an  instruction  to  Morris  as  to  the 
English  ship  Jane,  which  Genet  had  requested  might  be  ordered  to 
sail,  a  request  authorized,  Genet  contended,  by  the  twenty-second 
article  of  the  treaty  of  commerce,  said  (Doc.  102,  p.  58)  : 

The  ship  Jane  is  an  English  merchant  vessel,  employed  in  the 
commerce  between  Jamaica  and  these  States.  She  brought  here 
a  cargo  of  produce  from  that  island,  and  was  to  take  away  a 
cargo  of  flour.  Knowing  of  the  war  when  she  left  Jamaica,  and 
that  our  coast  was  lined  with  small  French  privateers,  she  armed 
for  her  defense,  and  took  one  of  those  commissions  usually  called 


HOOPER  V.  UNITED  STATES  379 

letters  of  marque.  She  arrived  here  safely  without  having  had 
any  rencontre  of  any  sort.  Can  it  be  necessary  to  say  that  a  mer- 
chant vessel  is  not  a  privateer?  That  though  she  has  arms  to 
defend  herself  in  time  of  war,  in  the  course  of  her  regular  com- 
merce, this  no  more  makes  her  a  privateer  than  a  husbandman 
following  his  plow  in  time  of  war  with  a  knife  or  pistol  in  his 
pocket  is  thereby  made  a  soldier.  The  occupation  of  a  privateer 
is  to  attack  and  plunder;  that  of  a  merchant  vessel  is  commerce 
and  self-preservation.  The  article  excludes  the  former  from  our 
ports,  and  from  selling  what  she  has  taken ;  that  is,  what  she  has 
acquired  by  war,  to  show  it  did  not  mean  the  merchant  vessel  and 
what  she  had  acquired  by  commerce.  Were  the  merchant  ves- 
sels coming  for  our  produce  forbidden  to  have  any  arms  for  their 
defense,  every  adventurer  who  has  a  boat,  or  money  enough  to 
buy  one,  would  make  her  a  privateer;  our  coasts  would  swarm 
with  them,  foreign  vessels  must  cease  to  come,  our  commerce 
must  be  suppressed,  our  produce  remain  on  our  hands,  or  at  least 
that  great  portion  of  it  which  we  have  not  vessels  to  carry  away ; 
our  plows  must  be  laid  aside,  and  agriculture  suspended.  This  is 
a  sacrifice  no  treaty  could  ever  contemplate,  and  which  we  are  not 
disposed  to  make  out  of  mere  complaisance  to  a  false  definition  of 
the  term  privateers. 

This  matter  has  also  been  specifically  passed  upon  by  the  French 
courts.  The  ship  Fame,  Rust,  master,  was,  in  June,  1799,  tried  by  the 
tribunal  of  commerce  sitting  at  Bayonne.  Several  grounds  were  relied 
upon  by  the  captors  as  authorizing  condemnation,  all  of  which  were 
overruled  by  the  tribunal.    Among  them  was  the  following: 

Is  the  letter  of  marque,  of  which  the  vessel  was  the  bearer,  suffi- 
cient to  cause  it  to  be  considered  as  an  enemy? 

This  question  was  thus  answered: 

Considering  the  point  relative  to  the  letter  of  marque  of  which 
the  ship  was  the  bearer.  That  the  French  Government  without 
doubt  is  not  ignorant  of  the  delivery  of  like  letters  by  the  Govern- 
ment of  the  United  States  to  the  vessels  of  the  said  United  States 
nor  of  the  terms  in  which  these  letters  are  conceived.  That  now 
and  up  to  the  present  time  it  has  not  been  manifested  that  it 
regarded  this  circumstance  and  the  act  of  Congress  of  the  United 
States  of  the  month  of  July,  1798,  either  as  a  declaration  of  war, 
or  as  hostilities  against  France,  since  it  has  not  asked  of  the  legis- 
lative body  a  law  declaring  the  French  nation  to  be  in  a  state  of 
war  with  the  United  States  of  North  America.  That  a  state  of 
war  can  not  be  established  or  declared  without  a  law  of  the  legis- 


380  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

lative  body.  That  it  does  not  belong  to  the  tribunals  to  take  notices 
of  any  step  that  a  foreign  power  may  take  as  constituting  a  state 
of  war  between  France  and  itself. 

That  the  condemnation  demanded,  of  the  said  ship  Fame  and 
of  her  cargo  because  of  the  said  letter  of  marque,  can  not  be 
founded  upon  any  law,  and  can  not  and  ought  not  to  be  pro- 
nounced. The  said  ship  besides,  not  having  opposed  any  resist- 
ance, suffered  itself  to  be  visited  at  the  summons  which  was  made 
to  it  by  the  said  privateer.  There  is,  then,  no  occasion  to  accede 
to  the  demand  of  the  captors  upon  this  point.  (See  Record  in 
case  Nathaniel  Richardson,  executor  of  Joshua  Richardson  et  al. 
V.  The  United  States,  No.  5343.) 

This  case  was  appealed  to  the  civil  tribunal  of  the  department,  and 
thence  to  the  council  of  prizes,  which  latter  tribunal,  on  the  13th  De- 
cember, 1800,  released  the  vessel  and  cargo  in  accordance  with  the 
judgment  of  the  two  lower  tribunals. 

The  Pegou  carried  ten  cannon.  She  was  provided  with  muskets  and 
munitions  of  war. 

The  law  officer  of  the  French  Government  having  charge  of  the  case 
made  the  following  points  among  others  (see  Pistoye  et  Duverdy, 
Prises  Maritimes,  vol.  2,  p.  51)  : 

It  is  not  enough  to  have  or  carry  arms  to  deserve  the  reproach 
of  being  armed  for  war  (p.  52). 

War  armament  is  for  purely  offensive  use.  This  is  shown  when 
there  is  no  object  in  the  armament  but  attack,  or  at  least  when 
everything  tends  to  prove  that  such  is  the  principal  object  of  the 
enterprise.  .  .  .  But  defense  is  a  natural  right,  and  means  of 
defense  are  legitimate  in  sea-voyages  as  in  all  other  occurrences 
perilous  to  life.  A  vessel  having  but  a  small  crew,  whose  cargo 
was  considerable,  was  evidently  intended  for  commerce,  not  for 
war.  The  arms  found  in  this  vessel  were  not  intended  for  vio- 
lence or  hostility,  but  to  prevent  them ;  not  to  attack,  but  to  defend. 
The  point  as  to  war  armament,  then,  seems  to  me  unfounded. 

The  Pegou  was  discharged  with  damages  to  her  captain. 

In  the  case  of  the  Friend,  of  Boston,  a  letter  of  marque  had  been 
found  on  board ;  the  vessel  was  armed  for  defense ;  there  was  no  resis- 
tance ;  summons  from  the  privateer  was  obeyed,  and  the  master's  in- 
structions directed  him  to  avoid  acts  of  offense  and  to  be  prudent.  The 
commissaire  of  the  Government  urged  that  these  were  not  reasons  for 
capture.  The  vessel  was  condemned  on  other  grounds.  (Pistoye  et 
Duverdy,  vol.  1,  p.  501.) 


HOOPER  V.  UNITED  STATES  381 

Further,  Article  IV  of  the  treaty  of  1800,  which  relates  to  "armed" 
and  "unarmed"  merchantmen,  shows  that  France  did  not  stand  upon 
the  point  urged  here  by  the  defense,  but  admitted  the  right  of  arma- 
ment to  the  extent  at  least  of  the  cases  now  before  us,  as  its  courts 
did  in  the  cases  cited  above. 

It  is  worthy  of  remark  that  two  classes  of  license  or  commission 
were  allowed  by  the  acts  of  Congress.  The  first  act  authorized  instruc- 
tions from  the  President  as  to  defense  only,  except  that  the  recapture 
of  American  vessels  was  permitted.  The  second  act  allowed  capture 
of  armed  Frenchmen.  In  the  absence  of  proof  as  to  which  docu- 
ment a  vessel  possessed  there  can  be  no  presumption  that  it  was  issued 
under  the  latter  rather  than  under  the  former  statute;  in  fact,  the 
presumption,  which  always  favors  what  is  natural,  might  lean  towards 
the  possession  of  instructions  under  the  first  act  when  it  appears  that 
the  crew  was  small,  the  armament  light,  and  the  object  of  the  voyage 
commercial  in  its  nature. 

The  distinction  must  not  be  forgotten  between  a  legal  and  justifiable 
seizure  and  an  illegal  and  unjustifiable  condemnation.  The  seizure  of 
a  vessel  may  be  successfully  defended  upon  grounds  which  would  not 
support  a  subsequent  condemnation,  and  "prize  courts  deny  damages 
when  there  was  probable  cause  for  the  seizure,  and  are  often  justified 
in  awarding  to  the  captors  their  costs  and  expenses,"  even  when  the 
vessel  and  cargo  are  decided  not  good  prize  and  are  returned  to  their 
owners.  {The  Thompson,  3  Wall.  155;  Jecker  v.  Montgomery,  13 
How.  498;  Murray  v.  The  Charming  Betsy,  2  Cr.  64.) 

We  conclude  that  a  vessel  fitted  for  the  purpose  of  seizing  French 
armed  vessels  and  of  recapturing  American  vessels  was,  when  taken, 
legitimate  prize  as  an  actor  in  the  limited  war  defined  by  Congress; 
but  that  the  mere  arming  of  a  merchantman  whose  object  was  trade, 
subordinate  to  which  was  the  provision  for  protection,  did  not  author- 
ize seizure  and  condemnation  even  if  an  instruction  or  license  under 
either  of  the  acts  of  1798  were  found  on  board.  In  these  cases,  as  in 
every  case  arising  between  nations,  technicalities  must  be  thrown  aside, 
and  the  very  essence  and  spirit  of  the  transaction  must  be  discovered 
by  the  light  of  the  facts  peculiar  to  each  case. 

It  is  urged  by  the  defendants  that  the  British  possessions  in  the  West 
Indies  were  in  a  state  of  blockade  and  occupied  in  such  manner  as 
properly  to  be  regarded  in  a  state  of  siege.    That,  therefore,  the  con- 


382  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

demnations  of  vessels  bound  for  those  ports  with  cargoes  otherwise 
innocent  were  legal  and  justifiable.  The  argument  has  turned  more 
particularly  upon  vessels  bound  for  Martinique,  so  that  for  purpose  of 
illustration  we  will  consider  the  case  of  that  island,  formerly  a  French 
possession  and  captured  by  England  during  the  war. 

The  defendants'  argument  assumes  that  Martinique  was  blockaded; 
that  it  was  practically  in  a  state  of  siege ;  that  its  predominant  charac- 
ter was  that  of  a  port  of  military  naval  equipment;  and  therefore  the 
seizure  of  neutral  vessels  bound  to  that  port  was  justified,  although 
the  cargo  was  otherwise  innocent. 

The  law  of  blockade  is  so  clear  that  while  a  few  citations  may  be 
g'iven  for  the  sake  of  illustration,  they  seem  to  us  hardly  necessan,'- 

Kent  says: 

The  law  of  blockade  is,  however,  so  harsh  and  severe  in  its 
operation,  that  in  order  to  apply  it,  the  fact  of  the  actual  blockade 
must  be  established  by  clear  and  unequivocal  evidence ;  and  the 
neutral  must  have  had  due  previous  notice  of  its  existence;  and 
the  squadron  allotted  for  the  purpose  of  its  execution  must  be 
competent  to  cut  off  all  communication  with  the  interdicted  place 
or  port;  and  the  neutral  must  have  been  guilty  of  some  act  of 
violation,  either  by  going  in  or  attempting  to  enter,  or  by  coming 
out  with  a  cargo  laden  after  the  commencement  of  the  blockade. 
The  failure  of  either  of  the  points  requisite  to  establish  the  exist- 
ence of  a  legal  blockade  amounts  to  an  entire  defeasance  of  the 
measure,  even  though  the  notification  of  the  blockade  has  issued 
from  the  authority  of  the  Government  itself.  A  blockade  must  be 
existing  in  point  of  fact,  and  in  order  to  constitute  that  existence, 
there  must  be  a  power  present  to  enforce  it.  All  decrees  and 
orders  declaring  extensive  coasts  and  whole  countries  in  a  state 
of  blockade,  without  the  presence  of  an  adequate  naval  force  to 
support  it,  are  manifestly  illegal  and  void,  and  have  no  sanction 
in  public  law.  The  ancient  authorities  all  referred  to  a  strict  and 
actual  siege  and  blockade.  The  language  of  Grotius  is  oppidum 
obsessiim  vel  partus  clansiis,  and  the  investing  power  must  be  able 
to  apply  its  force  to  every  point  of  the  blockaded  place,  so  as  to 
render  it  dangerous  to  attempt  to  enter,  and  there  is  no  blockade  of 
that  part  where  its  power  can  not  be  brought  to  bear.  (Vol.  1, 
pp.  144-5.) 

The  United  States  have  contended  that  a  blockade  must  be  effective 
to  be  valid  (note  b.  to  Kent,  vol.  1,  p.  145),  and  admitted  the  principle 
even  as  to  its  own  ports  during  the  late  war.  This  question  has  been 
very  ably  discussed  m  a  late  note  from  the  Secretary  of  State,  Mr. 


HOOPER  V.  UNITED  STATES  383 

Bayard,  to  the  minister  representing  the  United  States  of  Colombia, 
in  which,  after  citing  authorities,  the  Secretary  reaches  the  follovvmg 
conclusions : 

After  careful  examination  of  the  authorities  and  precedents 
bearing  upon  this  important  question,  I  am  bound  to  conclude  as 
a  general  principle  that  a  decree  by  a  sovereign  power  closing  to 
neutral  commerce  ports  held  by  its  enemies,  whether  foreign  or 
domestic,  can  have  no  international  validity  and  no  extraterritorial 
effect  in  the  direction  of  imposing  any  obligation  upon  the  Govern- 
ments of  neutral  powers  to  recognize  it  or  to  contribute  toward  its 
enforcement  by  any  domestic  action  on  their  part.  Such  a  decree 
may  indeed  be  necessary  as  a  municipal  enactment  of  the  state 
which  proclaims  it,  in  order  to  clothe  the  executive  with  authority 
to  proceed  to  the  institution  of  a  formal  and  effective  blockade 
but  when  that  purpose  is  attained  its  power  is  exhausted.  If  the 
sovereign  aecreeing  such  closure  have  a  naval  force  sufficient  to 
maintain  a  blockade,  and  if  he  dulv  proclaims  such  a  blockade, 
then  he  may  seize,  and  subject  to  the  adjudication  of  a  prize  court, 
vessels  which  may  attempt  to  run  the  blockade.  If  he  lay  an  em- 
bargo, then  vessels  attempting  to  evade  such  embargo  may  be 
forcibly  repelled  by  him  if  he  be  in  possession  of  the  port  so  closed. 
But  his  decree  closing  ports  which  are  held  adversely  to  him  is, 
by  itself,  entitled  to  no  international  respect.  Were  it  otherwise, 
the  de  facto  and  titular  sovereigns  of  any  detenninate  country  or 
region  might  between  them  exclude  all  merchant  ships  whatever 
from  their  ports,  and  in  this  way  not  only  ruin  those  engaged  in 
trade  with  such  states,  but  cause  much  discomfort  to  the  nations 
of  the  world  by  the  exclusion  of  necessary  products  found  in  no 
other  market.  (Note,  dated  April  24,  1885.  See  also  Hall,  In- 
ternational Laiv,  §§  257  and  260;  3  Phillimore,  311  and  516;  case 
of  The  Sarah  Star,  Blatchford's  Prize  Cases,  69-87;  Lawrence's 
Wheaton,  pp.  575    et  scq.) 

Sir  William  Scott  thus  laid  down  the  rule: 

To  constitute  a  violation  of  blockade  three  things  must  be 
proved :  First,  the  existence  of  an  actual  blockade ;  second,  the 
know-ledge  of  the  party  supposed  to  have  oft'ended :  and,  third, 
some  act  of  violation,  either  by  going  in  or  coming  out  with  a 
cargo  laden  after  the  commencement  of  blockade.  (The  Betsey, 
1  Rob.  Adm.,  p.  92.  As  to  Berlin  and  Milan  decrees  see  Wool- 
sey,  §  206.) 

Therefore  to  justify  seizure  the  blockade  must  be  effective,  notice 
must  have  been  given,  and  there  must  be  an  attempt  to  violate  it. 


384  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Was  Martinique  effectively  blockaded? 

Defendants  have  referred  us  to  no  authority  to  show  that  it  was, 
and  we  have  made  such  examination  as  the  sources  of  historical  inves- 
tigation on  this  subject  afforded  without  finding  any  statement  to  that 
effect.  The  records  of  the  numerous  spoliation  cases  in  this  court 
which  have  been  brought  to  our  attention  throw  no  light  on  the  sub- 
ject, as  they  proceed  upon  the  fact  that  the  condemned  vessel  was 
bound  to  an  enemy  port  or  J^iden  with  enemy  produce  and  the  condem- 
nations rest  upon  French  decrees. 

An  examination  of  the  history  of  Anglo-French  naval  operations 
directly  affecting  the  West  Indies  discloses  the  following  events : 

February  2d,  1794,  an  English  expedition  sailed  from  the  Barbadoes 
to  attempt  the  capture  of  Martinique,  then  under  the  command  of 
General  Rochambeau.  This  expedition  consisted  of  three  ships  of  the 
line,  eight  frigates,  four  sloops,  two  store-ships,  and  one  bomb,  under 
command  of  Vice-Admiral  Sir  John  Jervis,  carrying  something  less 
than  6,100  troops,  commanded  by  Lieutenant-General  Sir  Charles  Grey, 
The  French  garrison  was  insignificant  in  number,  consisting  only  of 
<;ome  600  men,  including  400  militia,  while  at  Fort  Royal  was  a  28-gun 
frigate,  and  at  St.  Pierre  an  18-gun  corvette.  Possibly  a  privateer  or 
two  was  also  available.  The  British  arrived  off  the  island  the  5th  ot 
February,  and  some  idea  may  be  gained  of  the  heroic  defense  of  the 
French  from  the  fact  that  with  the  overwhelming  force  at  their  com- 
mand the  British  did  not  obtain  a  surrender  until  the  22d  of  March. 
The  forts  were  garrisoned,  Lieutenant-General  Prescott  was  given 
command,  a  small  squadron,  under  Commodore  Thompson,  was  left  to 
cooperate  with  him  in  case  of  attack,  and  the  rest  of  the  expedition 
embarked  the  31st  March  to  attack  St.  Lucie  (James'  Naval  History, 
vol.  1,  pp.  217  et  seq.),  which  surrendered  without  the  loss  of  a  life 
upon  the  4th  of  April.  Then  followed  the  conquest  of  Grande-Terre, 
another  expedition  having  taken  the  three  small  islands  adjacent  to 
Guadeloupe,  called  the  "Saintes,"  and  on  the  20th  April  all  Guade- 
loupe and  its  dependencies  surrendered,  comprising  the  islands  of 
Marie  Galante,  Desirade,  and  the  Saintes,  at  an  expense  of  two  British 
rank  and  file  killed,  four  rank  and  file  wounded,  and  five  missing.  A 
French  16-gun  corvette  was  captured  in  this  expedition,  but  was  not 
deemed  fit  for  service. 

Early  in  June  a  French  squadron  of  two  frigates,  one  corvette,  two 
large  ships  armed  en  iiute,  and  five  transports  anchored  off  the  village 


HOOPER  V.  UNITED  STATES  385 

of  Gosier,  Guadeloupe,  and  began  disembarking  troops  commanded 
by  Victor  Hugues,  bearing  the  title  of  commissaire  civil.  After  skir- 
mishes with  the  British  garrison  and  French  royalists,  in  which 
Hugues's  troops  were  successful,  a  considerable  force  of  vessels  and 
men  were  sent  by  the  British  to  dislodge  them.  The  result  was  the 
withdrawal  of  the  British  from  Grande-Terre  the  3d  July,  just  one 
month  after  Hugues's  arrival.  In  October  the  French  received 
reinforcements,  took  Basse-Terre,  and  the  6th  October,  1794,  were 
again  masters  of  Guadeloupe,  except  a  small  port  called  Fort  Matilda, 
which,  so  tenacious  was  the  resistance,  they  did  not  capture  until 
December  10.  At  the  close  of  the  preceding  year  the  British  had 
obtained  possession  of  Cape  Nicolas  Mole,  Jeremie,  and  other  French 
villages  in  San  Domingo,  and  in  February,  1794,  other  places  on  the 
island  fell  into  their  hands  after  trifling  resistance.  In  May  a  strong 
force  was  sent  by  the  British  against  Port  au  Prince,  which  surrendered 
June  4.  In  December  the  British  post  at  Cape  Tiburon  was  attacked 
and  captured  by  French  troops,  assisted  by  three  armed  vessels  (ibid.). 
As  soon  as  news  of  Hugues's  victory  reached  France  there  were  dis- 
patched to  his  assistance  a  50-gun  frigate,  a  36-gun  frigate,  two 
corvettes,  an  armed  ship  or  two,  and  eight  or  ten  transports  with 
3,000  troops  and  suitable  stores. 

The  arrival  of  this  important  reinforcement  inspired  Victor 
Hugues  with  designs  against  the  other  ceded  islands.  Having  not 
only  troops,  but  transports  to  convey  and  ships  of  war  to  protect 
them,  this  demon  of  republicanism,  whose  barbarity,  as  fully  ac- 
credited on  several  occasions,  was  of  the  most  revolting  descrip- 
tion, readily  contrived  to  land  soldiers  at  Sainte  Lucie,  St.  Vin- 
cent, Grenada,  and  Dominique.  Artful  emissaries  accompanied 
the  troops,  and  soon  succeeded  in  raising  a  ferment  in  the  islands 
which  they  visited.  The  negroes,  Caribs,  and  many  of  the  old 
French  inhabitants  revolted  ;  and  dreadful  were  the  atrocities  per- 
petrated upon  the  well  affected.  .  .  .  The  British  troops, 
thinly  distributed  from  the  first  and  since  reduced  by  fatigue  and 
sickness,  could  offer  in  general  but  a  feeble  resistance  to  the  num- 
bers of  different  enemies  opposed  to  them.  The  garrison  at 
Sainte  Lucie,  numbering  2,000  men,  evacuated  the  island  on  the 
19th  of  June  (1795).  'By  the  27th  of  June  the  "rebellion"  in 
Dominique  had  been  quelled  "by  the  few  British  troops  stationed 
there,  assisted  by  the  bulk  of  the  inhabitants,"  St.  Vincent  and  a 
part  of  Grenada  remaining  in  a  revolted  state.  (Ibid.  298  ct 
seq.) 


386  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

In  April  and  May,  1796,  the  English  took,  without  conflict,  the 
Dutch  settlements  of  Demerara,  Essequibo,  and  Berbice.  On  the  24th 
May,  after  a  stubborn  combat  of  over  a  month,  Sainte  Lucie  was  cap- 
tured by  the  British  troops  and  vessels.  June  11  St.  Vincent  surren- 
dered, as  a  few  days  later  did  Grenada.  So  far  as  appears  the  French 
had  no  armed  ships  at  either  of  these  islands.  In  the  preceding  March 
the  British  made  an  unsuccessful  attack  upon  the  town  and  fort  of 
Leogane,  San  Domingo,  and  a  successful  one  upon  the  fort  and  parish 
of  Bombarde.  No  French  ships  appear  in  these  actions,  but  a  squadron 
arrived  at  Cape  Francois  May  12,  but  returned  immediately  to  France. 
{Ibid.  367  et  seq.) 

February,  1797,  a  British  squadron  left  Port  Royal,  Martinique,  for 
the  purpose  of  attacking  the  Spanish  colonies.  Trinidad  soon  fell  into 
their  hands,  and,  touching  at  Martinique  on  the  way,  the  squadron 
proceeded  to  Porto  Rico,  the  attack  upon  which  was  unsuccessful.  In 
April  the  French  36-gun  frigate  Harmonie  was  destroyed  by  the  Eng- 
lish near  Jean  Babel,  while  sailing  under  orders  to  convoy  to  Cape 
Frangois,  from  Port  au  Prince  and  Jean  Babel,  a  number  of  provi- 
sion-laden American  vessels  captured  by  French  privateers.  An  action 
between  three  of  the  British  fleet,  a  French  privateer,  and  a  French 
battery  in  Carcasse  Bay,  is  the  only  other  engagement  noted  as  having 
taken  place  in  the  West  Indies  during  this  year.  (Ibid.,  vol.  II,  pp.  97 
et  seq.) 

The  year  1798  opened  with  the  evacuation  by  the  British  in  April  of 
Port  au  Prince,  St.  Marc,  and  Arcahaye,  all  in  San  Domingo,  shortly 
after  which  three  French  36-gun  frigates  landed  supplies  at  Cape 
FranQois  and  returned  home.  An  engagement  between  the  British  and 
Spanish  was  the  only  other  important  naval  event  of  this  year  in  the 
Gulf.  In  August,  1799,  the  British  took  the  Dutch  island  of  Surinam, 
finding  in  the  river  a  French  corvette,  the  Hussar,  which  was  added  to 
the  British  navy.  (Ibid.,  p.  373.)  September  13,  1800,  the  island  of 
Curasao  surrendered  to  the  British,  and  forty-four  vessels  were  found 
lying  in  the  harbor,  but  no  warships.     (Ibid.,  vol.  Ill,  p.  59.) 

In  May,  1793.  the  Hyena,  of  24  guns,  and  La  Concorde,  of  40  guns 
(the  advance  frigate  of  a  French  squadron  of  some  six  vessels),  had 
an  engagement  oflf  Cape  Tiburon,  which  resulted  in  the  defeat  of 
the  former.  In  July  the  English  frigate  Boston,  after  capturing  the 
first  lieutenant  of  the  French  frigate  Emhuscade,  then  lying  in  the 
harbor  of  New  York,  challenged  the  Frenchman  to  battle,  a  challenge 


HOOPER  V.  UNITED  STATES  387 

which  was  accepted;  the  battle  took  place  without  decided  result,  and 
during  it  what  was  supposed  to  be  a  large  French  squadron  appeared 
m  the  offing,  while  two  French  frigates  were  afterwards  found  by 
the  Boston  lying  in  the  mouth  of  the  Delaware,  where  she  sought 
refuge.  In  November  a  combat  took  place  between  Penelope  and 
Iphigenia  on  the  one  side  and  the  Insurgente  on  the  other,  in  the  bight 
of  Leogane,  island  of  San  Domingo,  resulting  in  the  defeat  of  the 
French  frigate.     (Ibid.,  vol.  I,  pp.  88  et  seq.) 

In  December,  1794,  the  British  frigate  Blanche,  cruising  off  the 
island  of  Desirade,  a  dependency  of  Guadeloupe,  then  in  French  pos- 
session, cut  out  a  government  armed  schooner  of  8  guns,  which,  to 
escape,  had  anchored  in  the  bottom  of  the  bay  of  Desirade.  Later 
the  Blanche  had  an  encounter  with  the  French  36-gun  frigate  Pique 
off  Point-a-Pitre,  in  which,  after  a  battle  most  gallant  on  both  sides, 
the  Pique  was  captured.  In  May  there  was  a  battle  in  Chesapeake  Bay 
between  two  English  frigates  and  five  lightly  armed  Frenchmen,  most 
of  them  store-ships.     (Ibid.  277  et  seq.) 

On  the  4th  of  May,  1796,  the  Spencer  engaged  and  captured  the 
French  gun-brig  Vulcan  in  latitude  28°  north,  longitude  69°  west. 

In  July,  1796,  a  combat  without  definite  result  took  place  between 
the  frigates  Aimable  (English)  and  Pensee  (French),  beginning  off 
"Englishman's  Head,"  Guadeloupe,  while  in  August  the  Mermaid 
attacked  the  Vengeance  within  gun  fire  from  Guadeloupe  batteries,  and 
in  July  the  Quebec  was  chased  by  two  French  frigates  when  not  far 
from  Port  au  Prince. 

August  25,  1796,  the  British  20-gun  ship  Raison  engaged  the  Ven- 
geance, the  Mermaid's  former  opponent,  in  latitude  41°  39'  north  and 
longitude  66°  24'  west,  without  definite  result.  Later  in  the  same 
month  an  English  squadron  captured  the  French  frigate  Elizabeth  off 
Cape  Henry.  In  September  the  Medee  engaged  the  Pelican  off  Guade- 
loupe. The  action  had  no  definite  result,  and  it  appears  that  at  this 
time  the  Thetis  (French)  and  either  the  Pensee  or  the  Concorde  were 
at  anchor  in  Guadeloupe.  The  Pelican  was  so  much  inferior  to  the 
Medee  in  armament  that  Hugues  sent  an  aide-de-camp  under  a  flag  of 
truce  to  the  Saintes  to  inspect  her  as  she  lay  there  at  anchor. 

On  the  10th  August,  1797,  the  38-gim  British  frigate  Arethusa,  cap- 
tured, after  stern  resistance,  the  French  corvette  Gaiete,  sighting  at 
about  the  same  time  the  brig-corvette  Espoir,  of  14  guns,  and  a  third 
vessel  supposed  to  be  a  small  French  war  vessel.     Five  days  later  the 


388  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Alexandrian,  schooner  of  6  guns,  acting  as  tender  to  the  flag-ship  at 
Martinique  and  engaged  in  quest  of  French  privateers,  captured  a 
privateer  schooner  and  chased  another,  which  escaped.  September  17 
the  Pelican  destroyed  the  French  privateer  Trompeiise  off  Cape  St. 
Nicolas  Mole.  On  the  4th  October  the  Alexandrian  captured  the 
French  privateer  Epicharis.  January  3,  1798,  the  British  armed  sloop 
George,  of  6  guns,  while  on  a  passage  from  Demerara  to  Martinique, 
was  captured  by  two  Spanish  privateers.  Thirteen  days  later  boats 
from  the  20-gun  ship  Babet,  then  cruising  between  Martinique  and 
Dominique,  captured  the  French  armed  schooner  Desiree.  April  17 
the  British  schooner  Recovery,  cruising  in  the  West  Indies,  fell  in  with 
the  privateer  Revanche  and  compelled  her  to  surrender.  May  7  the 
British  brig  sloop  Victorieuse,  while  passing  to  leeward  of  Guadeloupe, 
was  attacked  without  success  by  two  French  privateers.  The  same 
vessel  during  the  following  December,  aided  by  the  14-gun  brig-sloop 
Zephyr  and  some  troops,  after  an  attack  upon  the  Spanish  in  the 
island  of  Margarita,  took  out  the  privateer  Couleuvre,  of  6  guns  and 
80  men,  from  the  port  of  Gurupano.  July  11  boats  from  the  British 
44-gun  ship  Regulus  cut  out  three  vessels  at  anchor  in  Aquada  Bay, 
Porto  Rico.  December  11  the  British  22-gun  ship  Perdrix  captured  the 
French  privateer  Armee  dfltalie  not  far  from  St.  Thomas. 

March  30,  1799,  boats  from  the  British  frigate  Trent  and  cutter 
Sparrozv  cut  out  a  Spanish  merchant  ship  and  schooner  which  they 
found  in  a  bay  of  Porto  Rico,  at  the  same  time  storming  and  carrying 
a  small  Spanish  battery.  April  13,  the  Amaranthe,  a  British  14-gun 
brig-sloop,  captured  the  French  letter-of-marque  schooner  Vengeur 
after  the  latter  had  made  a  noble  resistance. 

The  officers  and  crew  of  the  Abergavenny,  stationary  flag-ship  at 
Port  Royal,  tired  of  inaction  during  the  whole  of  1797  and  part  of 
1798,  fitted  out  on  their  own  account  a  frigate  launch  which  was  so 
successful  in  prize-taking  that  its  proprietors  were  enabled  to  pur- 
chase with  their  prize  money  a  small  schooner  named  the  Ferret, 
which  became  the  tender  of  the  Abergavenny.  The  Ferret  early  in 
October,  1799,  had  a  very  sharp  encounter  with  a  Spanish  privateer 
without  decisive  result.  Later  in  the  same  month  the  British  brig- 
sloop  Echo  cruising  off  Porto  Rico,  chased  a  French  letter-of-marque 
into  Laguadille  bay  and  cut  her  out,  and  not  long  after  occurred  the 
daring  capture  of  the  Hermione  in  the  harbor  of  Puerto  Cabello.  In 
November  the  Crescent  and  Calypso  adroitly  saved  their  convoy  from 


HOOPER  V.  UNITED  STATES  389 

a  Spanish  squadron.  Still  later  in  that  month  the  Solebay,  cruising  off 
San  Domingo,  encountered  a  French  squadron  recently  arrived  at 
Cape  Frangois  from  France  and  bound  to  Jacmel.  Strange  to  say, 
this  32-gun  frigate  captured  all  the  French  vessels  without  casualty 
on  either  side.  The  squadron  consisted  of  four  vessels  mounting  58 
guns,  manned  with  431  men,  while  the  frigate  carried  38  guns  and 
about  212  men.  In  December  an  indecisive  conflict  took  place  off  the 
island  of  Porto  Santo  between  the  Glenmore  and  Amiable  in  charge 
of  an  outward  bound  British  West  India  convoy,  and  the  Sirene  and 
Bergbre  bound  from  Rochelle  to  Cayenne  with  450  troops  and  Victor 
Hugues  on  board.  (James,  Vol.  II,  pp.  79  et  seq.;  198  et  seq.;  313 
et  seq.)  Early  in  April,  1800,  boats  from  the  sloop  Calypso  off  Cape 
Tiburon,  carried  the  French  privateer  Diligente.  In  August  the  Brit- 
ish 38-gun  frigate  Seine,  cruising  in  the  Mona  passage,  sighted  the 
Vengeance,  bound  from  Curasao  to  France,  which,  after  a  sharp 
combat,  surrendered.  In  October  the  schooner  Gypsie  (British) 
cruising  off  Guadeloupe,  captured  the  Quidproquo  of  8  guns.  (James, 
Vol.  Ill,  pp.  27  et  scq.y 

We  have  now  set  forth  in  this  catalogue  at  somewhat  tedious  but 
necessary  length  every  naval  action  (except  some  few  unimportant 
combats  with  privateers)  of  which  we  can  find  record,  which  took 
place  from  1793  to  1800,  both  years  inclusive,  between  British  and 
French  or  Spanish  naval  forces,  on  or  near  the  eastern  coast  of  Amer- 
ica, between  the  latitude  of  Boston  and  the  northern  coast  of  South 
America.  The  reason  for  so  voluminous  a  list,  which,  while  probably 
not  without  omissions,  we  believe  to  be  sufficiently  correct,  is  that  from 
it  alone  can  any  conclusion  be  drawn  as  to  the  amount  of  the  French 
naval  force  and  its  uses  during  the  period  in  dispute.  For  convenience 
to  those  whose  interest  or  duty  it  may  be  to  investigate  this  question 
we  have  cited  but  from  one  authority,  and  one  which,  while  not  with- 
out fault  of  national  prejudice,  is  carefully  and  conveniently  compiled. 
Other  authorities  examined  by  the  court  reinforce  the  conclusions  we 
draw  from  the  citations  already  made. 

Martinique  it  is  alleged  was  effectively  blockaded.  This  is  not 
affirmatively  shown,  and  perhaps  we  might  rest  here,  but  in  this  class 
of  cases  we  have  thought  it  right  to  go  further  and  to  endeavor  to 
throw  all  the  light  in  our  power  upon  the  exact  situation. 


1  Consult   also  Life   of   Decatur,    Sparks'   series    of   Biography,   31 ;    Copper's 
Naval  History  United  States,  Vol.  I. 


390  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

From  the  citations  made  and  also  from  the  history  of  the  American 
Navy  certain  facts  clearly  appear  as  worthy  of  notice. 

First,  the  very  small  number  of  encounters  between  vessels  of  the 
English  navy  and  French  vessels  of  war. 

Second,  that  no  such  encounter  took  place  near  Martinique,  the  two 
captures  of  privateers  by  the  Alexandrian  being  the  only  combats 
mentioned  as  occurring  in  the  vicinity  of  that  port  after  its  occupa- 
tion  by  the  English. 

Third,  that  not  a  word  is  said,  or  an  allusion  made,  in  any  attain- 
able authority  as  to  a  blockade  or  an  attempted  blockade  (in  fact)  of 
any  West  Indian  English  port.  It  does  not  appear  that  any  armed 
vessel,.  English  or  American,  was  ordered  to,  or  attempted  to,  break 
any  such  blockade,  although  the  English  force  was  at  times  very  large 
in  the  West  Indies  and  was  actively  engaged.  Neither  in  Cooper's 
Naval  History  nor  in  the  Life  of  Decatur,  nor  in  any  other  work 
relating  either  to  the  English  or  American  Navy  which  we  have  been 
able  to  consult,  nor  in  the  diplomatic  correspondence  of  the  period, 
do  we  find  any  statement  tending  to  show  that  there  existed  anything 
other  than  a  paper  blockade,  a  blockade  useless  and  void  in  so  far 
as  neutral  rights  were  affected. 

Further  proof  of  this  absence  of  effective  blockade  is  found  in  the 
large  number  of  merchant  vessels  which  safely  traded  with  these  ports 
during  the  period  in  question,  and  in  the  lack  of  contention  on  the 
part  of  France,  notwithstanding  Mr.  Pickering's  vigorous  language 
(Doc.  102,  pp.  408,  410),  that  they  were  maintaining  or  endeavoring 
to  maintain  an  effective  blockade. 

We  have  already  seen  that  the  French  Government  did  not  desire 
the  fulfillment  of  the  treaty's  guaranty  clause,  deeming  it  wiser  on 
their  own  account  that  we  should  not  embark  in  the  war.  Genet  and 
the  colonists  complained  of  our  course  on  this  subject,  but  the  home 
government  did  not  agree  with  them.  As  late  as  March,  1798,  Talley- 
rand wrote  to  Pinckney  and  his  colleagues  that  "the  Republic  was 
hardly  constituted  when  a  minister  was  sent  to  Philadelphia,  whose 
first  act  was  to  declare  to  the  United  States  that  they  would  not  be 
pressed  to  execute  the  defensive  clauses  of  the  treaty  of  alliance, 
although  the  circumstance,  in  the  least  equivocal  manner,  exhibited 
the  casus  foederis"  (4  Wait's  Am.  State  Papers,  p.  97).  We  find  no 
claim  by  France  that  the  treaty  was  abrogated  by  a  failure  by  the 
United  States  to  fulfill  the  guaranty  clause.     During  and  soon  after 


HOOPER  V.  UNITED  STATES  391 

1794  the  West  India  Islands  fell  into  the  hands  of  Great  Britain,  yet 
in  1795  (January  3)  a  French  decree  reciting  the  law  of  December, 
1794,  ordering  the  treaties  of  1778  to  be  respected  as  in  force,  declared, 
in  favor  of  the  United  States,  the  principle  of  free  ships,  free  goods, 
except  as  to  ports  actually  blockaded.  As  against  this  position  of  his 
superiors,  Hugues,  in  February,  1797,  issued  his  order  subjecting  to 
capture  and  confiscation  vessels  and  cargoes  destined  to  the  captured 
islands,  giving  as  a  reason  the  failure  of  the  guaranty. 

The  fact,  then,  that  some  of  the  West  India  Islands  had  been  taken 
from  France  does  not  seem  to  complicate  the  legal  question. 

It  is  urged  that  provisions  bound  for  Martinique  were  properly  con- 
demned, on  the  ground,  substantially,  that  as  the  port  was  in  posses- 
sion of  an  enemy  force,  it  must  be  assumed  they  were  intended  to 
feed  that  force,  and  therefore  were  contraband  by  destination.  (Citing 
The  Peter hof,  5  Wall.  58;  2  Black,  671  and  672,  "The  Prize  Cases"; 
Desty  on  Shipping,  §  423;  Tetens,  Droits  Recip.,  p.  114;  Blatchford's 
Prize  Cases,  p.  464.) 

As  far  back  as  Grotius  the  distinction  was  made  between  things 
useful  only  for  war,  the  carriage  of  which  by  neutrals  is  prohibited, 
things  which  serve  merely  for  pleasure,  the  carriage  of  which  is  per- 
mitted, and  things  useful  both  in  peace  and  war,  as  money  or  pro- 
visions, which  are  sometimes  lawful  articles  of  neutral  commerce,  and 
sometimes  not,  according  to  the  circumstances  existing  at  the  time. 
Thus  provisions  would  be  contraband  if  bound  to  a  besieged  camp  or 
port.  Kent,  who  seems  to  be  the  most  liberal  of  the  writers  towards 
defendants'  position,  thus  lays  down  the  rule: 

The  modern  established  rule  is,  that  provisions  are  not  generally 
contraband,  but  may  become  so  under  circumstances  arising  out 
of  the  particular  situation  of  the  war,  or  the  condition  of  the 
parties  engaged  in  it.  Among  the  circumstances  which  tend  to 
preserve  provisions  from  being  liable  to  be  treated  as  contraband, 
one  is  that  they  are  the  growth  of  the  country  which  produces 
them.  Another  circumstance  to  which  some  indulgence  is  shown 
by  the  practice  of  nations  is  when  the  articles  are  in  their  native 
and  manufactured  state.  Thus  iron  is  treated  with  indulgence, 
though  anchors  and  other  instruments  fabricated  out  of  it  are 
directly  contraband.  Hemp  is  more  favorably  considered  than 
cordage ;  and  wheat  is  not  considered  as  so  objectionable  a  com- 
modity, when  going  to  an  enemy's  country,  as  any  of  the  final 
preparations  of  it  for  human  use.  The  most  important  distinc- 
tion is,  whether  the  articles  were  intended  for  the  ordinary  use 


392  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

of  life  or  even  for  mercantile  ships'  use,  or  whether  they  were 
going  with  a  highly  probable  destination  to  military  use.  The 
nature  and  quality  of  the  port  to  which  the  articles  are  going  is 
not  an  irrational  test.  If  the  port  be  a  general  commercial  one, 
it  is  presumed  the  articles  are  going  for  civil  use,  though  occa- 
sionally a  ship  of  war  may  be  constructed  in  that  port.  But  if 
the  great  predominant  character  of  that  port,  like  Brest  in  France, 
or  Portsmouth  in  England,  be  that  of  a  port  of  military  naval 
equipment  it  will  be  presumed  that  the  articles  were  going  for 
military  use,  although  it  is  possible  that  the  articles  might  have 
been  applied  to  civil  consumption.  As  it  is  impossible  to  ascertain 
positively  the  final  use  of  an  article  ancipitis  usus,  it  is  not  an  in- 
jurious rule  which  deduces  the  final  use  from  the  immediate  des- 
tination, and  the  presumption  of  a  hostile  use,  founded  on  its  des- 
tination to  a  military  port,  is  very  much  inflamed,  if,  at  the  time 
when  the  articles  were  going,  a  considerable  armament  was 
notoriously  preparing,  to  which  a  supply  of  those  articles  would 
be  eminently  useful.     (Vol.  I.  p.   139.) 

The  Supreme  Court  has  decided  that  provisions  the  growth  of  the 
enemy's  country,  but  the  property  of  a  neutral,  and  carried  in  a  neu- 
tral vessel,  are  good  prize  because  destined  to  supply  the  enemy's 
forces ;  and  the  court  added  that  provisions  are  not  generally  contra- 
band, but  may  become  so  because  of  their  destination  or  the  particular 
situation  of  the  war.  If  intended  for  the  ordinary  use  of  life,  they 
are  innocent ;  if  intended  for  the  enemy's  forces  or  his  ports  of  warlike 
equipment,  then  their  seizure  is  justifiable.  (TJie  Commercen,  1 
Wheaton,  382.) 

Bluntschli  thinks  it  against  "gute  sitte"  to  treat  trade  in  provisions 
as  contraband  even  if  it  serves  the  hostile  army's  use  {Mod.  Volker' 
recht,  §  807).  Heflfter  (Europdisches  Volkerrecht,  §  160)  holds  that 
belligerents  may  take  measures  against  the  export  by  neutrals  of 
doubtful  articles,  articles  occasionally  contraband,  only  when  a  destina- 
tion for  the  enemy's  Government  and  military  forces  can  be  shown  on 
adequate  grounds.  Ortolan  denies  that  provisions  and  objects  of 
prime  necessity  may  be  considered  contraband,  except  in  cases  not 
pertinent  to  this  discussion  (Vol.  II,  179).  Hautefeuille  goes  much 
further  and  admits  as  contraband  only  arms  and  munitions  of  war 
ready  for  immediate  use,  fit  to  be  used  as  such  and  for  no  other  pur- 
pose.    (Droits  des  Nations  Neutres,  II,  419.) 

Kliiber  leans  the  same  way  and  holds  that  presumptions  are  in  favor 
of  freedom  of  trade  (§  288),  and  Martens  states  that  the  law  in  Eu- 


HOOPER  V.  UNITED  STATES  393 

rope  prior  to  the  first  armed  neutrality,  1780,  considered  as  contra- 
band only  articles  of  direct  use  in  war.  Vattel  sanctions  the  seizure 
of  provisions  "in  certain  junctures  when  we  have  hopes  of  reducing 
the  enemy  by  famine"  (Liv.  Ill,  ch.  7,  sec.  112),  but  Wheaton  be- 
lieves he  intended  to  carry  the  principle  no  further  than  to  the  case 
of  a  besieged  city;  and,  commenting  on  Grotius,  Wheaton  reaches  the 
conclusion  that  the  latter  sanctions  the  seizure  of  provisions,  not  bound 
to  a  port  besieged  or  blockaded,  only  when  made  for  preservation  or 
defense  "under  the  pressure  of  that  imperious  and  unequivocal  neces- 
sity which  breaks  down  the  distinctions  of  property,"  and  this  power 
should  not  be  exercised  until  all  other  possible  means  have  been  used, 
then  not  if  the  right  owner  is  under  a  like  necessity,  and  even  then 
restitution  shall  be  made  as  soon  as  possible.  Bynkershoek  and 
Rutherforth  concur  in  this  view.     (Wheaton,  pp.  556  to  558.) 

Wheaton  expresses  no  definite  opinion  for  himself,  but  clearly  leans 
to  the  side  of  freedom  towards  the  neutral. 

In  1793  (May  7),  Mr.  Jefferson  instructed  Mr.  Pinckney  in  relation 
to  a  fear  expressed  by  the  latter  that  the  belligerent  powers  might 
stop  our  vessels  going  with  grain  to  enemy  ports,  that  "such  a  stop- 
page to  an  unblockaded  port  would  be  so  unequivocal  an  infringement 
of  the  neutral  rights  that  we  can  not  conceive  it  will  be  attempted." 
This  instruction  was  followed  by  another  dated  September  7,  1793, 
in  which  Mr.  Jefferson,  after  stating  that  in  time  of  war  neutrals  are 
free  to  pursue  their  ordinary  avocations  of  agriculture,  manufacture, 
and  commerce,  with  the  exception  of  not  furnishing  to  either  bellig- 
erent "implements  merely  of  war  for  the  annoyance  of  the  other,  nor 
anything  whatever  to  a  place  blockaded  by  its  enemy,"  proceeds  to 
define  these  "implements"  as   follows : 

There  does  not  exist  perhaps  a  nation,  in  our  common  hemis- 
phere, which  has  not  made  a  particular  enumeration  of  them  in 
some  or  all  of  their  treaties  under  the  name  of  contraband.  It 
suffices  for  the  present  occasion  to  say  that  corn,  flour,  and  meal 
are  not  of  the  class  of  contraband,  and  consequently  remain  ar- 
ticles of  free  commerce.  A  culture  which,  like  that  of  the  soil, 
gives  employment  to  such  a  proportion  of  mankind,  could  never  be 
suspended  by  the  whole  earth,  or  interrupted  for  them,  whenever 
any  two  nations  should  think  it  proper  to  go  to  war.  ...  If 
any  nation  whatever  has  a  right  to  shut  up  to  our  produce  all  the 
ports  of  the  earth  except  her  own  and  those  of  her  friends,  she 
may  shut  up  these  also,  and  so  confine  us  within  our  own  limits. 
No  nation  can  subscribe  to  such  pretensions ;  no  nation  can  agree. 


394  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

at  the  mere  will  or  interest  of  another,  to  have  its  peaceable  in- 
dustry suspended  and  its  citizens  reduced  to  idleness  and  want 
.  .  .  It  is  not  enough  for  a  nation  to  say  we  and  our  friends 
will  buy  your  produce.  We  have  a  right  to  answer  that  it  suits 
us  better  to  sell  to  their  enemies  as  well  as  their  friends.  Our 
ships  do  not  go  to  France  to  return  empty.  They  go  to  exchange 
the  surplus  of  one  product  which  we  can  spare  for  surpluses  of 
other  kinds  which  they  can  spare  and  we  want ;  which  they  can 
furnish  on  better  terms  and  more  to  our  mind  than  Great  Britain 
or  her  friends.  We  have  a  right  to  judge  for  ourselves  what 
market  best  suits  us,  and  they  have  none  to  forbid  us  the  enjoy- 
ment of  the  necessaries  and  comforts  which  we  may  obtain  from 
any  other  independent  country. 

Mr.  Randolph,  denying  that  food  can  be  universally  ranked  "among 
military  engines,"  admitted  that  corn,  meal,  and  flour  are  so  in  case  of 
"blockade,  siege,  or  investment."  In  the  late  Franco-Chinese  war 
France  endeavored  to  make  "rice"  contraband,  and,  referring  to  this 
contention,  Mr.  Kasson,  our  minister  in  Berlin,  wrote  as  follows  to 
the  Secretary  of  State : 

.  .  .  But  more  especially  I  beg  your  attention  to  the  im- 
portance of  the  principle  involved  in  this  declaration,  as  it  con- 
cerns our  American  interests.  We  are  neutrals  in  European  wars. 
Food  constitutes  an  immense  portion  of  our  exports.  Every  Eu- 
ropean war  produces  an  increased  demand  for  these  supplies  from 
neutral  countries.  The  French  doctrine  declares  them  contra- 
band, not  only  when  destined  directly  for  military  consumption, 
but  when  going  in  the  ordinary  course  of  trade  as  food  for  the 
civil  population  of  the  belligerent  government.  If  food  can  be 
thus  excluded  and  captured,  still  more  can  clothing,  the  instru- 
ments of  industry,  and  all  less  vital  supplies  be  cut  off  on  the 
ground  that  they  tend  to  support  the  efforts  of  the  belligerent 
nation.  Indeed,  the  real  principle  involved  goes  to  this  extent, 
that  everything  the  want  of  which  will  increase  the  distress  of  the 
civil  population  of  the  belligerent  country  may  be  declared  con- 
traband of  war.  The  entire  trade  of  neutrals  with  belligerents 
may  thus  be  destroyed,  irrespective  of  an  effective  blockade  of 
ports.  War  itself  would  become  more  fatal  to  neutral  States  than 
to  belligerent  interests. 

The  rule  of  feudal  times,  the  starvation  of  beleaguered  and  for- 
tified towns,  might  be  extended  to  an  entire  population  of  an  open 
country.  It  is  a  return  to  barbaric  habits  of  war.  It  might 
equally  be  claimed  that  all  peaceful  men  of  arms-bearing  age 
could  be  deported,  because  otherwise  they  might  be  added  to  the 
military  forces  of  the  country. 


HOOPER  V.  UNITED  STATES  395 

Martinique  was  neither  blockaded  nor  besieged.  It  undoubtedly  had 
a  British  garrison  and  was  a  refuge  and  sometimes  a  rendezvous  for 
British  armed  vessels ;  at  the  same  time  it  had  a  large  civil  population 
to  be  fed  then,  as  it  is  now,  largely  by  the  products  of  the  temperate 
zone.  Its  predominant  character  was  not  that  of  a  port  of  naval  or 
military  equipment. 

We  do  not  consider  that  a  provision-laden  ship  bound  for  Mar- 
tinique was  properly  condemned  on  the  ground  alone  that  she  was 
bound  to  a  British  port,  nor  do  we  consider  the  fact  that  the  port  had 
once  been  French  complicates  the  situation.  There  is  nothing  in  the 
law  of  nations  which  justifies  or  makes  valid  as  against  neutrals  such 
decrees  as  those  issued  during  this  war  by  the  French  and  English. 
Russia  admitted  these  decrees  were  contrary  to  the  law  of  nations. 
France  promised  to  pay  for  captures  made  under  them.  England  and 
Spain  did  pay  the  United  States.  (See  authorities  cited  in  Gray, 
Adm'r,  v.  U.  S.,  21  C.  Cls.  340.)  If  either  party  desired  to 
reduce  the  other  by  starvation  there  was  a  plain  and  acknowledged 
legal  method  to  obtain  that  end ;  that  is,  by  the  establishment  of  an 
effective  blockade.  That  neither  was  able  to  take  this  course,  is  not  a 
reason  that  the  commerce  of  neutrals  should  be  suspended  on  the 
penalty  of  having  their  merchant  vessels  and  cargoes  confiscated.  To 
admit  such  a  doctrine  would  be  to  impose  in  time  of  war  a  worse  bur- 
den upon  the  neutral  than  that  borne  by  either  belligerent,  and  would 
shut  it  up  in  its  own  ports,  or  oblige  it  to  furnish,  in  protection  of  its 
commerce,  a  naval  force  competent  to  compete  with  the  belligerent, 
which  by  paper  decrees  unsupported  by  effective  acts,  by  its  municipal 
law  attempts  to  interfere  with  the  recognized  and  natural  rights  of 
neutral  trade. 

We  do  not  understand  that  in  the  negotiations  of  1800  the  French 
denied  the  justice  of  claims  similar  in  principle  to  the  one  now  sug- 
gested, and  the  treaty  of  1778  in  terms  conceded  the  right  to  trade  with 
the  enemy.  The  commerce  of  the  United  States  was  principally  in 
agricultural  products,  certainly  not  in  munitions  of  war.  A  most  im- 
portant complaint  was  as  to  that  part  of  the  belligerent  decrees  which 
directed  seizure  of  neutral  property  on  the  sole  ground  of  destination 
to  an  enemy  port  without  regard  to  the  character  of  the  cargo.  (See 
Treaty  Commerce  1778,  Articles  XII,  XIII,  XXIII,  XXIV.) 

It  seems  to  us  clear  that  this  class  of  claims  was  contemplated  by 
the  treatv  of  1800  and  the  act  of  1885. 


396  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  burden  of  proof  in  prize  proceedings  is  on  the  seized  vessel. 
The  authorities  concur  in  this  general  statement,  but  the  principle  is 
not  technical  and  is  not  to  be  pushed  beyond  its  proper  natural  intent. 
Seized  vessels  always  appear  before  the  court  under  the  taint  of  sus- 
picion ;  that  taint  it  is  incumbent  upon  them  to  remove,  as  it  is  in  their 
powder  alone  to  do  so.  What  the  court  looks  for  is  the  fact.  If  it 
appear  that  the  vessel  was  innocently  pursuing  an  honest  and  legal 
voyage,  whether  that  appear  by  papers  or  otherwise,  then  the  vessel 
should  be  released.  No  particular  papers,  no  specified  character  of 
evidence  is  marked  out  and  defined  as  indispensable  to  attain  this  end. 
A  case  is  easily  supposable  in  which  a  merchant  vessel  has  lost  its 
papers  by  an  accident,  or  by  theft,  or  by  robbery  committed  by  a 
pirate  or  privateer,  or  through  suppression  by  the  captor,  and  it  would 
not  be  admitted — the  fact  of  their  non-production  being  explained, 
and  the  vessel's  honest  character  being  shown — that  because  some  par- 
ticular document  was  not  on  board  she  therefore  should  be  condemned 
and  confiscated.  The  onus  probandi  is  on  the  captured  vessel ;  which 
means  no  more  than  that  she  must  explain  away  suspicious  circum- 
stances. 

The  learned  counsel  for  the  defense  contend  that  the  United  States 
first  violated  the  treaties  of  1778  by  the  proclamation  of  neutrality  of 
1793,  by  refusing  to  guarantee  the  French  possessions,  by  refusing  to 
grant  the  promised  harbor  privileges,  and  by  concluding  the  Jay  treaty. 
Therefore  "it  was  the  right  of  France  to  retaliate  upon  the  United 
States  for  these  violations :  and  whatever  she  did,  or  whatever  was 
done  by  her  authority  in  such  retaliation  prior  to  and  during  the  lim- 
ited war  existing  between  the  two  countries,  whether  by  captures,  seiz- 
ures, condemnations,  or  confiscations  of  American  property,  vessels 
or  cargoes,  was  justifiably  done." 

In  another  form  substantially  the  same  contention  is  made,  defen- 
dants claiming  that  the  acts  of  France  complained  of  by  the  United 
States  were  authorized  by  the  law  of  nations ;  that  whether  reparation 
was  to  be  made  by  France  depended  upon  compliance  with  her  de- 
mands ;  that  as  the  United  States  did  not  acquiesce  in  those  demands, 
but  by  the  annulling  act  of  July,  1798,  practically  notified  France  that 
they  would  not  do  so,  "from  that  moment  France  owed  no  compensa- 
tion for  those  confiscations  and  the  matter  was  res  judicata." 

In  considering  these  propositions  it  will  strike  any  one  who  has 
studied  the  correspondence  or  will  refer  to  the  extracts  made  from 


HOOPER  V.  UNITED  STATES  397 

it  by  us  in  this  and  our  previous  opinions  on  the  spoHations  question, 
that  France  never  took  this  point.  It  will  be  remembered  that  the 
decrees  at  the  outset  were  admitted  by  ail  parties  to  be  illegal,  and 
excusable  only  on  the  ground  of  necessity ;  that  while  this  admission 
was  not  by  any  means  consistently  adhered  to,  still  England  and  Spain 
came  back  to  it  in  effect  when  they  compensated  the  United  State  i 
for  losses — England  through  a  commission  organized  under  the  pro- 
vision of  the  Jay  treaty,  Spain  in  the  treaties  relative  to  the  Florida 
purchase. 

France  did  not  seriously  ask  us  to  enforce  the  guaranty  and  appar- 
ently did  not  wish  us  to  do  so,  however  much  we  may  have  feared 
such  a  demand  on  her  part,  and  however  much  some  of  her  agents  and 
her  colonists  may  have  desired  it.  The  vital  point  of  difference  was 
the  Jay  treaty.  We  have  already  discussed  that  instrument  and  stated 
that  it  was  in  conflict  with  the  provisions  in  the  Franco-American 
treaties  of  1778.  France  did  not  contend  that  the  Jay  treaty  abrogated 
the  treaties  of  1778 ;  on  the  contrary,  her  whole  argument,  down  to  the 
ratification  of  the  treaty  of  1800,  was  based  upon  the  premise  that 
these  treaties  were  of  enduring  force.  The  decree  itself  which  ordered 
seizure  of  neutral  property  bound  in  United  States  vessels  to  enemy 
ports,  set  forth  as  a  reason  for  its  enactment  that  the  Jay  treaty  modi- 
fied, not  annulled,  the  treaties  with  France,  and  that  France  was 
entitled  under  the  treaties  to  any  benefit  this  modification  might  give 
her. 

France  did  not  deny  at  any  point  of  the  negotiations  which  led  to 
the  treaty  of  1800  her  liability  for  claims  known  by  the  generic  name 
of  "spoliations,"  but  claimed  in  return  for  payment  recognition  of 
treaties,  a  demand  which  was  not  granted,  and  the  contention  re- 
mained embodied  in  the  second  article,  which  was  stricken  out.  Thus 
was  completed  what  Madison  called  the  "bargain"  by  which  we  released 
"spoliations"  in  consideration  of  release  from  all  obligations  founded 
upon  the  treaties  of  1778.  A  striking  illustration  of  the  French  posi- 
tion, if  any  is  needed  after  the  detailed  statement  of  the  negotiations 
which  has  heretofore  been  made,  is  found  in  Article  IV  of  the  treaty 
of  1800,  which  agrees  to  return  prizes  captured  under  the  decrees,  now 
termed  by  the  defense  decrees  of  retaliation,  when  those  prizes  had 
not  been  already  definitively  condemned. 

Acts  of  retaliation  are  admitted  to  be  justifiable  under  certain  cir- 
cumstances.    Thev  mav  exist  when  the  two  nations  are  otherwise  at 


398  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

peace,  but  they  are  in  their  nature  acts  of  warfare.  They  depart  from 
the  field  of  negotiation  into  that  of  force,  and,  as  is  war,  are  justified 
by  a  successful  result.  To  term  the  decrees  of  France  and  the  acts 
of  their  privateers  under  them  "acts  of  reprisal''  does  not  alter  the 
facts  or  the  legal  position.  That  position  has  been  defined  by  the 
Supreme  Court  of  the  United  States  as  limited  partial  war.  We,  fol- 
lowing the  path  indicated  by  that  tribunal,  have  defined  it  as  "limited 
war  in  its  nature  similar  to  a  prolonged  series  of  reprisals."  The  result 
of  that  partial  limited  war,  the  result  of  the  negotiations  for  settle- 
ment, the  agreement  reached  by  the  two  parties  which  made  the 
Government  of  the  United  States  liable  over  to  its  citizens,  we  have 
heretofore  considered  so  much  in  detail  that  we  shall  not  now  repeat  it, 
and  we  need  only  state  briefly  the  result  heretofore  reached  by  us,  and 
in  which  we,  after  reexamination,  are  confirmed,  that  the  acts  of 
France,  now  in  question,  whether  called  "reprisals"  or  acts  of  limited 
warfare,  were  contended  by  the  United  States  to  be  illegal,  were  ad- 
mitted so  to  be  by  France ;  that  France  stood  ready  to  make  the  com- 
pensation made  by  England  and  Spain  for  similar  acts  on  their  part, 
provided  we  would  admit  certain  claims  of  her  own,  which  we  declined 
to  do ;  and  finally,  by  the  substitution  of  the  existing  second  article 
of  the  treaty  for  that  agreed  upon  by  the  negotiators,  these  claims  were 
surrendered  in  consideration  of  a  release  from  the  French  demand. 

The  case  of  the  Tzvo  Brothers  presents  a  claim  for  salvage  paid  an 
American  man-of-war  for  rescue  from  a  French  privateer. 

The  broad  principle  of  prize  law  forbids  an  allowance  by  way  of 
salvage  to  the  captor  of  a  neutral  in  possession  of  a  belligerent.  The 
reason  of  the  rule  is  plain :  salvage  is  remuneration  for  aid  in  case 
of  danger,  and  a  neutral  vessel  in  the  hands  of  a  civilized  belligerent 
is  not  in  danger,  for  it  is  to  be  presumed  that,  if  innocent,  she  will  be 
discharged  by  the  prize-court  with  damages  for  detention.  Some  of 
the  prize-courts  in  France  were  at  certain  times  during  the  disturbed 
period  between  1792  and  1801  very  fair  and  just  in  their  treatment  of 
neutral  property.  We  have  in  our  opinions  on  the  spoliations  cited 
instances  of  a  reasonable  judicial  application  of  the  law.  Unfor- 
tunately, however,  the  fair  administration  of  justice,  which  before  the 
Revolution  and  since  has  characterized  the  learned  and  able  officials 
who  have  there  filled  the  offices  of  the  magistrature,  was  interrupted 
during  the  period  now  under  consideration.  Setting  aside  the  charges 
made  of  ulterior  and  improper  motives  on  the  part  of  individual  magis- 


HOOPER  V.  UNITED  STATES  399 

trates  of  which  illustrations  are  found  in  the  letters  of  Monroe,  Mount- 
florence,  and  Pickering  (supra),  we  need  only  to  recall  that  the  decrees 
of  the  French  or  colonial  governments  were  binding  upon  the  prize 
tribunals,  and  those  tribunals  were  obliged  to  enforce  them.  Many 
of  the  decrees  were  in  conflict  with  the  law  of  nations  and  were  an 
invasion  of  the  rights  of  neutrals.  The  position  assumed  by  the  French 
authorities  placed  neutrals  prosecuting  innocent  voyages  in  a  most 
dangerous  position.  If  taken  by  a  French  privateer  they  were  not  to 
expect  a  trial  under  the  recognized  law  of  nations,  but  a  trial  under 
arbitrary  and  illegal  municipal  enactments ;  a  trial  which  would  neces- 
sarily result  in  condemnation,  even  if  the  local  tribunal  were  above 
suspicion  of  improper  prejudice. 

Under  these  circumstances  the  reason  fails  for  the  rule  as  to  salvage 
in  case  of  recapture  of  a  neutral  from  a  belligerent.  As  the  neutral 
was  in  danger  of  condemnation,  so  the  recapturing  vessel  was  entitled 
to  salvage.  We  have  already  cited  the  opinion  of  Lord  Stowell,  who, 
at  the  time  of  the  occurrences  from  which  these  claims  arose,  found  it 
just  and  necessary  to  adopt  this  rule. 

The  Supreme  Court  of  the  United  States  have  declared  that  to  sup- 
port a  demand  for  salvage  two  circumstances  must  concur — the  taking 
must  be  lawful,  and  there  must  be  a  meritorious  service  rendered  to 
the  recaptured.  Commenting  on  Lord  Stowell's  opinion  as  to  the 
necessity  for  meritorious  service,  the  court  say : 

The  principle  is  that  without  benefit  salvage  is  not  payable ;  and 
it  is  merely  a  consequence  from  this  principle  which  exempts  re- 
captured neutrals  from  its  payment.  But  let  a  nation  change  its 
laws  and  its  practice  on  this  subject;  let  its  legislation  be  such 
as  to  subject  to  condemnation  all  neutrals  captured  by  its  cruisers, 
and  who  will  say  that  no  benefit  is  conferred  by  a  recapture.  In 
such  a  course  of  things  the  state  of  the  neutral  is  completely 
changed.  So  far  from  being  safe,  he  is  in  as  much  danger  of 
condemnation  as  if  captured  by  his  own  declared  enemy.  A  series 
of  decisions,  then,  and  of  rules  founded  on  his  supposed  safety,  no 
longer  apply.  Only  those  rules  are  applicable  which  regulate  a 
situation  of  actual  danger.  This  is  not  as  it  has  been  termed,  a 
change  of  principle,  but  a  preservation  of  principle  by  a  practical 
application  of  it  according  to  the  original  substantial  good  sense 
of  the  rule. 

The  court  then  inquire  whether  the  laws  of  France  were  such  as  to 
have  rendered  the  condemnation  of  a  neutral  in  possession  of  a  French 


400  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

prize  crew  so  probable  as  to  create  a  case  of  such  real  danger  that  her 
recapture  must  be  considered  as  a  meritorious  service  authorizing 
allowance  as  salvage.  On  this  point  the  conclusion  is  reached  that  the 
danger  of  loss  was  real  and  imminent. 

The  captured  vessel  was  of  such  description  that  the  law  by 
which  she  was  to  be  tried  condemned  her  as  good  prize  to  the 
captor.  Her  danger  then  was  real  and  imminent.  The  service 
rendered  her  was  an  essential  service,  and  the  court  is  therefore  of 
opinion  that  the  recaptor  is  entitled  to  salvage.  {Talbot  v.  See- 
man,  case  of  the  Amelia,  1  Cr.  1.) 

We  see  no  reason  why  a  rule  laid  down  by  such  eminent  authority, 
so  just  in  principle,  and  the  result  of  such  sound  judicial  reasoning, 
should  not  be  applied  to  the  cases  now  before  us. 

The  Nancy  was  under  charter  to  sail  from  Baltimore  to  Jamaica, 
there  to  discharge  cargo,  reload,  and  return  to  Baltimore.  While  on 
her  way  to  Jamaica  under  this  charter-party  she  was  seized  on  the  high 
seas  by  a  French  privateer  and  lost  to  her  owners.  The  question  is 
now  presented  as  to  the  basis  upon  which  an  allowance  for  freight 
should  be  computed. 

It  is  evident  that  freight  earned  is  an  element  of  value  in  the  prop- 
erty lost.  The  ship-owner  .has  a  right  to  expect  a  reasonable  return 
upon  his  venture,  and  this  return  he  finds  only  in  the  freight  money. 
As  between  the  vessel  and  the  cargo-owner  the  freight  is  regarded 
as  an  entirety  due  in  no  part  until  the  arrival  of  the  vessel  at  the  port 
of  destination.  Between  these  two  alone  does  this  rule  prevail — as  to 
them  the  law  has  placed  a  certain  construction  upon  the  contract  of 
affreightment  to  which  they  are  parties — a  construction  well  under- 
stood, admitted,  and  certain.  As  to  third  parties  no  such  rule  pre- 
vails, and  as  against  them  freight  is  often  recoverable,  even  when  the 
vessel  does  not  reach  her  destination.  In  cases  of  tort,  such  as  colli- 
sion, Dr.  Lushington  says:  "The  party  who  had  suffered  the  injury 
is  clearly  entitled  to  an  adequate  compensation  for  any  loss  he  may 
sustain  for  the  detention  of  the  vessel  during  the  period  which  is 
necessary  for  the  completion  of  the  repairs,  and  furnishing  the  new 
articles  (2  W.  Robinson,  279),  and  he  allowed  gross  freight,  less  the 
ordinary  ship's  expenses  necessary  to  earn  it.  As  a  broad  rule  this 
is  well  enough,  but  it  is  not  without  possible  exception,  for  we  may 
imagine  an  injury  at  a  time  when  the  vessel  is  not  engaged  in  freight 


HOOPER  V.  UNITED  STATES  401 

earning,  although  even  then  we  probably  look  to  the  market   for  a 
proper  measure  of  damages. 

The  case  of  The  Amiable  Nancy  (3  Wheaton,  560),  and  Smith  v. 
Condry  (1  How.  35),  allowed  only  the  "actual  damage  sustained  by 
the  party  at  the  time  and  place  of  injury"  without  allowance  for  deten- 
tion. In  Williamson  v.  Barrett  (13  Howard,  101),  a  collision  case,  the 
court  allowed  damages  for  demurrage,  adopting  the  rate  of  freight, 
less  expenses,  as  a  proper  measure,  three  justices  dissenting  on  the 
ground  that  the  majority  rule  introduced  too  much  uncertainty  into 
the  case  and  tended  to  increase  the  "stringency,  tediousness,  and 
charges  of  litigation  in  collision  cases."  They  therefore  preferred  a 
rule  granting  full  damages  at  the  time  and  place  of  collision,  with  legal 
interest  on  the  amount  thus  ascertained. 

The  case  of  the  Baltimore,  arising  from  collision,  was  decided  in 
1869  (8  Wall.  377),  the  court  holding  that  the  suffering  party  is  not 
limited  to  compensation  for  the  immediate  effects  of  the  injury  in- 
flicted, but  the  claim  for  compensation  may  extend  to  loss  of  freight, 
necessary  expense  incurred  in  making  repairs,  and  unavoidable  deten- 
tion. Restitutio  in  integrum  is  the  leading  maxim  in  such  cases,  say 
the  court,  and  in  respect  to  materials  for  repairs  where  repairs  are 
practicable  there  shall  not,  as  in  insurance  cases,  be  any  deduction  for 
new  materials  in  place  of  old,  for  this  reason  that  "the  claim  of  the 
injured  party  arises  by  reason  of  the  wrongful  act  of  the  party  by 
wkom  the  damage  was  occasioned,  and  the  measure  of  the  indemnity 
is  not  limited  by  any  contract,  but  is  coextensive  with  the  amount  of 
damage.  .  .  .  Allowance  for  freight  is  made  in  such  a  case 
reckoning  the  gross  freight  less  the  charges  which  would  necessarily 
have  been  incurred  in  earning  the  same,  and  which  were  saved  to  the 
owner  by  the  accident,  together  with  interest  on  the  same  from  the 
date  of  the  probable  termination  of  the  voyage." 

In  case  of  capture  the  general  rule  is  that  the  neutral  carrier  of 
enemy's  property  is  entitled  to  his  freight  (Story,  J.,  in  The  Commercen, 
1  Gallison,  264).  Sir  William  Scott  held  very  firmly  by  this  rule  in 
the  case  of  Dcr  Mohr  (3  C.  Rob.  129,  and  4  C.  Rob.  315),  a  case  of 
great  hardship,  appealing  strongly  to  the  sympathy  of  the  court.  In 
that  case,  he  said : 

In  an  unfortunate  case  like  the  present,  the  court  would  cer- 
tainly be  disposed  to  give  the  captor  all  possible  relief.  I  need 
not  add  that  no  relief  is  possible  which  can  not  be  given  consist- 


402  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

ently  with  the  justice  due  to  the  claimant.  The  demand  of  freight 
is,  I  apprehend,  an  absolute  demand,  in  cases  where  the  ship  is 
pronounced  to  be  innocently  employed.  .  .  .  The  freight  is 
as  much  a  part  of  the  loss  as  the  ship,  for  he  (the  captor)  was 
bound  to  answer  equally  for  both.  The  captor  has,  by  taking  pos- 
session of  the  whole  cargo,  deprived  the  claimant  of  the  fund  to 
which  his  security  was  fixed.  He  was  bound  to  bring  in  that 
cargo  subject  to  the  demand  for  freight.  He  was  just  as  answer- 
able for  the  freight  of  the  voyage  as  for  the  ship  which  was  to 
earn  it,  or  which  was  rather  to  be  considered  as  having  already 
earned  it.  In  the  room  of  this  fund  the  captor  has  substituted  his 
own  personal  responsibility,  for  loss  accrues  by  the  fault  of  his 
agent.  I  see  no  distinction  under  which  I  can  pronounce  that 
the  claimant  is  not  as  much  entitled  to  the  freight  as  to  the  ves- 
sel.    (See  also  1  Gallison,  274,  the  Anna  Green.) 

Upon  an  open  insurance  policy  gross  freight  is  recoverable  (2  Phil- 
lips, Ins.,  §  1238).  As  to  insurance,  the  inchoate  right  to  freight  vests 
directly  "the  ship  has  broken  ground  on  the  voyage  described  in  the 
charter-party,"  and  there  is  an  insurable  interest  "where  there  is  an 
expectancy  coupled  with  a  present  existing  title"  (Lucena  v.  Craw- 
ford, 2  Bos.  and  Pull.  N.  R.  269;  1  Phillips,  Ins.,  §  334,  p.  192.) 

Freight,  then,  is  property  insurable  and  collectible.  It  has  value 
although  the  right  as  against  the  freighter  may  be  inchoate  until 
delivery.  As  to  the  freighter  the  ship-owner  is  without  redress,  unless 
there  be  delivery  in  accordance  with  the  contract,  but  as  to  an  insurer 
or  a  tort-feasor,  there  is  a  right  to  redress  upon  the  happening  of  an 
interruption  of  the  voyage.  The  amount  of  that  redress  and  the 
method  of  computing  it  in  the  cases  now  submitted  to  us  of  illegal 
capture  are  now  to  be  decided.  The  ship-owner  has  a  right  to  a 
reasonable  return  upon  his  investment,  for  the  risk  to  which  his  prop- 
erty is  subjected,  for  its  depreciation  while  engaged  in  the  undertaking, 
and  for  the  expenses  to  which  he  is  subjected  in  carrying  it  out.  The 
measure  of  that  return,  based  upon  the  theory  of  a  completed  voyage, 
he  has  himself  fixed  in  his  contract  of  affreightment.  If  his  voyage 
be  not  completed,  but  be  interrupted  and  his  property  lost  by  the  act 
of  a  wrong-doer,  then,  as  against  that  wrong-doer,  the  maxim  resti- 
tutio in  integrum  applies.  If  the  voyage  were  completed  the  difficulty 
would  not  be  serious,  for  as  a  guide  we  should  have  a  contract  made 
by  parties  opposed  in  interest  and  familiar  with  the  business.  As  the 
voyage  has  not  been  completed,  an  allowance  of  gross  freight  would 
be  more  than  a  restitutio  in  integrum,  and  would  neglect  a  deduction 


HOOPER  V.  UNITED  STATES  403 

for  expenses  necessarily  to  be  incurred  in  completing  the  contract  and 
in  conveying  the  cargo  to  the  point  of  delivery.  To  allow  gross 
freight  under  these  circumstances  would  in  effect  not  merely  reimburse 
the  owner,  but  render  the  seizure  a  matter  of  profit  to  him,  and  we  do 
not  understand  that  punitive  damages  should  be  recovered  in  the  cases 
now  before  us.  The  vessel  having  been  destroyed  before  the  com- 
pletion of  the  voyage,  has  not  been  so  long  employed  as  the  contract 
contemplated,  her  crew  have  received  less  wages,  and  her  hull  and  out- 
fit have  received  less  deterioration.  She  has  only  earned  freight  pro 
tanto.  On  the  other  hand,  the  expenses  of  freight  earning  are  much 
greater  at  the  beginning  of  the  voyage  than  at  any  other  period,  for 
then  advances  are  made  seamen,  stores  are  shipped,  port  charges  and 
the  cost  of  loading  have  to  be  met.  Therefore,  to  divide  the  total 
freight  by  the  number  of  days  out  of  port  would  not  be  fair  to  the 
ship-owner;  to  deduct  from  the  total  freight  the  cost  of  the  voyage 
from  the  place  of  destruction  to  port  of  destination  would  be  a  fairer 
rule,  could  those  expenses  be  ascertained. 

To  compute  the  amount  of  this  freight  in  each  instance  is  practically 
impossible,  so  that  the  court  is  forced  to  the  adoption  of  some  gen- 
eral rule  which  in  cur  opinion  is  fair  in  result.  The  difficulty  is  not 
a  novel  one,  and  the  method  of  solution  not  without  precedent.  Those 
familiar  with  the  proceedings  of  prize  courts  know  that  a  substantially 
arbitrary  rule  is  there  often  adopted  in  practice  to  enforce  justice,  and 
now,  nearly  a  hundred  years  after  the  events  from  which  these  claims 
arise,  when  all  witnesses  are  dead  and  many  records  destroyed,  we  are 
forced  to  this  course,  as  it  is  evidently  impossible  to  estimate  in  every 
instance  preciselv  the  proportion  of  freight  earned.  Where  such  an 
estimate  can  be  made  we  shall  make  it,  in  other  cases  we  shall  adopt 
a  general  rule. 

In  seeking  for  such  a  rule,  we  learn  that  in  commercial  cities,  in 
the  adjustment  of  average  losses,  there  is  a  practice  to  award  arbitrarily 
two-thirds  of  the  full  freight  on  the  immediate  voyage.  This  course 
was  in  effect  followed  by  the  commissioners  under  the  treaty  of  1831 
with  France,  who  made  a  similar  allowance  as  a  fair  measure  of  the 
increase  in  value  of  the  cargo  by  reason  of  the  distance  to  which  it  had 
been  transported  at  the  time  of  capture;  and  the  award  was  made  to 
the  shipper  if  he  had  paid  freight;  to  the  ship-owner  if  the  freight  had 
not  been  paid. 

After  carefully  examining  the  cases  before  us  we  conclude  that  this 
rule  is  substantially  just,  and  we  adopt  it. 


404  JUDGMENTS  OF  THE'  COURT  OF  CLAIMS 

This  brings  us  to  another  point.  The  Nancy  was  under  charter  for 
a  round  voyage — Baltimore  to  Jamaica  and  return.  She  was  de- 
stroyed on  the  outward  voyage.  Is  she  entitled  to  an  allowance  for 
freight  based  upon  the  entire  contract  contained  in  the  charter-party? 

As  against  an  insurer  or  tort-feasor  the  inchoate  right  to  freight 
vests  when  the  vessel  breaks  ground  "on  the  voyage  described  in  the 
charter-party"  (supra).  An  insurable  interest  in  freight  can  not  spring 
from  a  mere  "expectancy,"  but  may  spring  from  an  "expectancy"  when 
this  is  coupled  with  "a  present  existing  title."  (Lucena  v.  Crawford, 
supra.) 

In  cases  of  general  average  for  jettison,  Lowndes  states  the  rule  to 
be  that  "when  a  ship  is  chartered  to  fetch  or  carry  a  cargo  belonging 
to  the  charterer,  the  freight  under  the  charter  must  contribute  to  the 
general  average,  whether  or  not  the  cargo  is  on  board  the  ship  at  the 
time  of  the  general  average  act,  since  the  loss  of  the  chartered  ship, 
whether  laden  or  not,  would  deprive  the  ship-owner  of  his  expected 
freight."     (Lowndes  on  General  Average,  236.) 

It  has  been  held  in  this  country  that  where  a  gross  sum  was  to  be 
paid  as  freight  for  a  voyage  out  and  return,  the  principal  object  of  the 
voyage  being  to  obtain  a  return  cargo,  the  freight  for  the  whole  trip 
must  contribute  to  general  average  on  the  outward  voyage.  (The 
Mary,  1  Sprague's  Decisions,  17.)  The  same  rule  has  been  adopted  in 
cases  of  salvage.  (The  Nathanial  Hooper,  3  Sumner,  542;  The  Pro- 
gress, Edwards,  210;  The  Dorothy  Foster,  6  C.  Rob.  88;  see  also  Liv- 
ingston V.  Columbia  Insurance  Company,  3  Johns,  N.  Y,  49;  Hart  v. 
Delaurare  Insurance  Company,  2  Wash.  C.  C.  346.) 

The  decisions  on  this  question  in  the  United  States  do  not  go  so  far 
as  those  in  England,  but  we  lean  to  the  doctrine  of  Sir  William  Scott 
and  Dr.  Lushington,  as  better  applicable  to  the  cases  now  before  us, 
that  when  a  vessel  is  actually  under  contract  for  a  voyage  from  one 
port  to  another,  thence  to  proceed  to  a  third,  she  has  such  "a  present 
existing  title"  in  the  freight  money  of  the  entire  voyage  as  to  authorize 
a  recovery  based  upon  the  total  freight  money  for  the  round  trip. 

Of  course  she  is  not  entitled  to  gross  freight,  and  we  must  not  be 
understood  as  intending  any  application  of  this  principle  to  a  vessel 
proceeding  under  a  mere  "expectancy"  of  finding  cargo  at  her  first  port 
of  call.  The  principle  onlv  covers  those  cases  where  there  is  an  as- 
surance of  freight  from  her  first  port  of  call  to  her  second,  and  a  price 
stipulated  to  be  paid  therefor. 


THE  SHIP  CONCORD  405 

We  have  discussed  and  ruled  upon  as  many  of  the  general  ques- 
tions submitted  in  the  argument  as  it  seems  to  us  wise  now  to  decide, 
either  for  counsel's  convenience  or  in  justice  to  the  Government  or 
the  claimants.  Other  points  which  have  arisen  in  the  long  argument 
we  shall  consider  as  they  are  brought  before  us  in  specific  cases.  The 
object  of  obtaining  from  the  court  a  ruling  upon  general  principles  is 
in  our  opinion  now  sufficiently  attained. 

We  file  herewith,  that  they  may  be  reported  to  Congress,  our  con- 
clusions of  fact  and  law  in  many  cases.  This  opinion,  with  those 
already  delivered,  contain  the  conclusions  which  in  our  judgment 
affect  the  liability  of  the  United  States  therefor. 


The  Ship  CONCORD^  [and  Other  Cases] 

[French  Spoliations  1589,  490,  507,  1587,  2556,  5361,  4037,  600.     Decided  April 

30,  1900] 

On  the  Proofs 

The  ship  Concord,  on  a  voyage  from  Canton  to  Philadelphia,  is  seized  February 
6,  1799,  by  a  French  privateer  and  carried  into  the  Isle  of  France,  where 
the  vessel  and  cargo  are  "confiscated"  on  the  ground  that  the  Governor- 
General  of  the  Isle  of  France  has  proclaimed  that  "France  and  the  United 
States  are  in  a  state  of  hostilities  from  the  month  of  July,  179^,  and  that 
tribunals  are  required  to  decree  the  confiscation  of  all  American  vessels 
brought  into  this  port  with  the  cargoes  on  board." 
I.  At  various  times  between  1793  and  1800  there  was  much  that  looked  like 
war  between  France  and  the  United  States,  but  the  United  States  never 
ceased  to  hold  France  pecuniarily  responsible  for  the  acts  of  her  cruisers 
and  privateers,  and  France  never  denied  her  responsibility  for  unjustifiable 
seizures  and  condemnations.  A  defense  which  France  could  not  now  set 
up  the  United  States  can  not.  Where  France  claimed  no  exemption  the 
United  States  can  claim  none  for  her,  and  where  they  can  claim  none  for 
her  they  can  set  up  none  for  themselves.  Liability  is  determined  by  the 
liability  of  France. 
II.  Between  1793  and  1800  the  assertion  in  French  courts  of  belligerent  rights 
was  in  remote  places.  The  tribunals  in  the  immediate  presence  of  the 
French  Government  held  of  the  Act  of  July  9,  1798"^  (Stat.  L.  578),  tliat 
"it  does  not  belong  to  the  tribunals  to  take  notice  of  any  step  that  a, 
foreign  power  may  take  cus  constituting  a  state  of  war  between  France 
and  itself." 


^  Court  of  Claims  Reports,  vol.  35,  page  432.  -  Supra,  p.  65. 


406  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

III.  Under  the  French  spoliation  act  an  indebtedness  on  the  part  of  original 
claimants  to  the  United  States  is  not  strictly  a  set-off,  as  no  judgment  can 
be  rendered  in  these  cases ;  but  it  is  an  equity  which  Congress  may  well 
consider,  inasmuch  as  the  relief  to  be  afforded  is  a  matter  of  conscience 
and  equity.^ 


NoTT,  Ch.  J.,  delivered  the  opinion  of  the  court: 

On  the  28th  of  November,  1798,  the  American  ship  Concord  sailed 
from  Canton  bound  for  Philadelphia. 

On  the  6th  of  February,  1799,  she  v^as  stopped  on  the  high  seas 
by  the  French  frigate  La  Prudente.  The  captain  of  the  frigate  found 
nothing  in  the  ship's  papers  to  justify  detention,  and  accordingly  al- 
lowed her  to  proceed.  But  upon  further  reflection,  after  an  interval 
of  several  hours,  he  reconsidered  his  determination  and  resolved  to 
take  the  responsibility  of  seizing  the  Concord  and  of  sending  her  in  to 
the  Isle  of  France  for  a  further  examination  by  the  authorities. 

The  story  of  her  seizure  is  best  told  by  her  captain  in  his  protest: 

She  proved  to  be  the  French  frigate  or  corsair  La  Prudente, 
Cap.  Joliff,  from  the  Isle  of  France,  on  a  cruise,  who,  after 
strictly  examining  my  ship's  papers,  bills  of  lading,  etc.,  ordered 
his  interpreter  to  inform  me  it  was  not  in  his  power  to  detain  me, 
as  my  papers  showed  the  ship  and  cargo  to  be  neutral  property ; 
at  same  time  returned  me  my  papers  with  orders  to  proceed  on 
my  voyage.  Accordingly  I  returned  on  board  the  Concord;  at 
2  p.m.  made  sail  on  our  course,  the  frigate  doing  the  same,  but 
standing  about  two  points  more  north ;  at  half  past  3  p.m.  hoisted 
colors  on  board  the  frigate;  we  hoisted  ours  also;  the  frigate 
came  up ;  the  captain  ordered  us  to  heave  to  until  he  sent  his  boat 
on  board,  which  came  with  three  officers,  and  orders  for  me  or  the 
supercargo  to  repair  on  board  the  Prudente,  with  all  letters, 
papers,  invoices,  etc.,  relating  to  ship  or  cargo.  Accordingly 
Mr.  Dobell,  supercargo  of  the  Concord,  took  the  papers  and  went 
on  board  the  frigate.  Soon  after  the  boat  returned  for  Mr. 
Dobell's  desk  and  small  box,  containing  sundry  orders,  invoices, 
etc.,  respecting  the  outward  cargo.  The  2d  officer  and  2d 
boy  were  also  taken  on  board  with  Mr.  Dobell,  and  all  detained 
during  the  night.     At  8  p.m.  the  frigate  hailed  and  ordered  the 


1  Pages  433  to  441  of  this  case  are  omitted,  as  being  merely  lists  of  claimants 
and  amounts  claimed.  They  contain  nothing  of  importance  for  the  purposes  of 
this  volume. 


THE  SHIP  CONCORD  407 

officers  to  make  sail  after  her,  and  steer  W.  b.  N.  during  the 
night.  At  6  a.m.  the  frigate's  boat  came  for  me.  I  went  on 
board.  The  captain  demanded  my  former  bills  of  lading  for  out- 
ward cargo,  for  which  I  went  on  board  the  Concord  and  returned 
again  on  board  the  frigate.  After  a  long  and  tedious  examination 
of  all  trivial  papers  the  captain  determined  to  send  us  to  the 
Isle  of  France.  At  4  p.m.  on  the  eighth  began  to  shift  crews. 
Cap.  Joliff  took  my  chief  mate,  seventeen  of  the  Concord's  crew 
on  board  the  frigate,  sent  some  Frenchmen  on  board,  sealed  up 
all  the  Concord's  papers,  and  dispatched  us  with  prize  master  for 
the  Isle  of  France,  where  we  arrived  on  the  10th  day  of  March, 
as  aforesaid. 

On  a  subsequent  day  the  prize  court  in  the  Isle  of  France  rendered 
a  decree  "confiscating"  the  ship  and  cargo.  The  decree  recites  that 
the  ship  Concord  sailed  under  the  American  flag  and  an  American 
passport;  that  the  captain,  officers,  and  crew  were  all  subjects  of  that 
nation,  and  that  her  cargo  belonged  to  American  subjects  residing  in 
Philadelphia.  In  other  words,  the  Concord  was  one  of  the  very  few 
of  the  American  vessels  whose  conduct,  ownership,  and  the  character 
of  whose  cargo  were,  in  the  opinion  of  French  tribunals,  each  and  all 
absolutely  unexceptionable. 

Nevertheless,  the  tribunal  pronounced  a  decree  of  confiscation  (not 
condemnation)  upon  the  sole  ground  that  the  Governor-General  of  the 
Isle  of  France  had  on  the  23d  day  of  June,  1799,  published  a  procla- 
mation declaring  that  France  and  the  United  States  were  and  had 
been  in  a  state  of  hostility  from  the  9th  day  of  July,  1798,  and  re- 
quiring all  tribunals  to  confiscate  all  American  vessels  which  had  been 
or  should  be  brought  into  French  ports,  with  the  cargoes  on  board. 

The  distinction  between  ''confiscated"  and  "condemned"  rested  on 
certain  French  decrees.  If  a  vessel  was  sailing  under  a  neutral  flag, 
she  or  her  cargo  might  be  condemned  for  cause;  if  she  were  an  enemy, 
she  and  her  cargo  would  thereby  be  liable  to  confiscation. 

It  is  apparent  that  some  unfortunate  American  vessel  whose  mas- 
ter carried  a  commission  under  the  Act  of  July  p,  lygS  (1  Stat.  L. 
578),  had  fallen  into  the  hands  of  the  French  governor,  and  that  he 
liad  thereupon,  without  instructions  from  his  own  Government,  pro 
claimed  war  as  existing  between  the  two  countries.  It  is  a  general 
principle  that  while  a  nation  is  enjoying  the  advantages  of  peace  she 
must  be  held  to  the  obligations  of  peace  and  be  responsible,  among 
other  things,  for  the  acts  of  her  officers  and  agents,  but  that  when 


408  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

war  comes  and  those  responsibilities  cease,  she,  while  encountering  the 
pains  and  penalties  of  war,  may  exercise  the  belligerent  right  of  cap- 
ture. At  various  times  between  1793  and  1800  there  was  much  which 
looked  like  war  between  the  two  countries.  But  notwithstanding  the 
act  of  the  9th  of  July,  1798,  and  the  decision  of  the  Supreme  Court  in 
Bas  V.  Tingy  (4  Dall.  37),  and  the  historic  battle  of  the  Constel- 
lation with  La  Vengeance,  wherein  each  ship  nearly  destroyed  the 
other  and  the  French  frigate  came  into  Curagao  dismasted  and  sink- 
ing, with  50  killed  and  110  wounded,  it  has  been  held,  and  it  must  be 
held  again,  that  no  war  existed  which  released  France  from  her  in- 
ternational responsibilities,  or  which  authorized  her  to  destroy  Ameri- 
can commerce.  The  question  has  been  exhaustively  argued  and  ex- 
haustively examined,  and  all  the  information  and  learning  which  it  is 
susceptible  of  receiving  will  be  found  embodied  in  the  opinions  in 
the  cases  of  Gray  (21  C.  Cls.  340),  Gushing  (22  id.  1),  and  the 
John  (22  id.  408).  In  a  few  words  it  may  be  said  that  the  United 
States  never  ceased  to  hold  France  pecuniarily  responsible  for  the  acts 
of  her  cruisers  and  privateers,  and  that  France  never  denied  her 
liability  for  unjustifiable  seizures  and  condemnations.  Moreover, 
France  never  interposed  the  defense  of  belligerent  rights,  but,  on  the 
contrary,  again  and  again  reiterated  her  willingness  to  discharge  her 
treaty  and  international  obligations  whenever  the  United  States  would 
discharge  theirs.  A  defense  which  France  could  not  now  and  did  not 
then  set  up,  the  United  States  can  not  set  up.  Where  France  claimed 
no  exemption  the  United  States  can  claim  none  for  her;  where  they 
can  claim  no  exemption  for  France,  they  can  set  up  none  for  them- 
selves. The  question  of  liability  to  be  determined  is  the  liability  of 
France. 

Another  fact  to  be  considered  is  that  this  warfare,  such  as  it  was, 
existed  only  in  what  were  then  remote  parts  of  the  earth,  the  West 
India  Islands,  the  Straits  of  Sunda,  the  Chinese  Seas,  etc.  At  the 
time  when  the  governor  of  the  Isle  of  France  was  proclaiming-  war 
and  confiscating  American  vessels  for  no  fault  of  their  own,  the 
Tribunal  of  Commerce  in  Bayonne,  in  the  immediate  presence  of  the 
French  Government,  was  proceeding  upon  the  basis  of  peace,  and  ad- 
ministering justice  according  to  the  accepted  principles  of  interna- 
tional law,  except,  of  course,  where  those  principles  were  varied  by 
French  decrees.  Thus  in  the  case  of  the  ship  Victory,  Hatton,  master 
(not  reported),  captured  October  6,  1799,  while  on  her  voyage  from 


THE  SHIP  CONCORD  409 

Norfolk  to  London,  the  tribunal  held  that  some  of  the  property  on 
board,  being  English,  was  subject  to  capture;  that,  inasmuch  as  the 
captors  "could  not,  while  at  sea,  take  out  the  goods  which  were 
enemy's  property  found  on  the  ship,  they  were  authorized  to  bring 
the  ship  into  a  port  for  its  discharge" ;  that  hence  there  was  no  reason 
for  decreeing  damages  to  the  American  ship.  But  the  court  then  de- 
crees "the  surrender  of  Captain  Hatton  of  the  said  ship  Victory  with 
her  rigging,  apparel,  appurtenances,  and  dependencies,  to  be  restored 
to  him  in  the  condition  she  was  at  the  time  of  the  seizure;  also 
that  like  surrender  shall  be  made  to  him  of  the  papers  and  documents 
relative  to  said  ship,  and,  finally,  the  surrender  of  the  portions  of  the 
goods  which  were  not  British  property."  And  the  court  then  pro- 
ceeds to  decree  the  condemnation  of  the  English  property  found  on 
the  ship,  with  the  proviso  "that  they,  the  captors,  pay  the  freight 
thereon  to  the  said  Captain  Hatton,  stipulated  and  borne  in  the  bills 
of  lading,  which  will  be  reduced  to  French  money  according  to  French 
exchange  on  Hamburg  and  that  of  Hamburg  on  London  by  persons 
skilled  and  upon  whom  the  parties  shall  agree  or,  in  default  of  agree- 
ing, by  persons  named  by  the  court." 

This  certainly  was  all  that  any  neutral  could  ask. 

Again,  and  at  about  the  same  time,  in  the  case  of  the  ship  Fame, 
Rust,  master,  the  same  tribunal  considered  the  very  point  now  under 
consideration,  and  its  decision  was  all  that  this  Government  could 
demand : 

Considering  the  point  relative  to  the  letter  of  marque  of  which 
the  ship  was  the  bearer.  That  the  French  Government  without 
doubt  is  not  ignorant  of  the  delivery  of  like  letters  by  the  Gov- 
ernment of  the  United  States  to  the  vessels  of  the  said  United 
States  nor  of  the  terms  in  which  these  letters  are  conceived.  That 
now  and  up  to  the  present  time  it  has  not  been  manifested  that 
it  regarded  this  circumstance  and  the  act  of  Congress  of  the 
United  States  of  the  month  of  July,  1798,  either  as  a  declara- 
tion of  war  or  as  hostilities  against  France,  since  it  has  not  asked 
of  the  legislative  body  a  law  declaring  the  French  nation  to  be  in 
a  state  of  war  with  the  United  vStates  of  North  America.  That  a 
state  of  war  can  not  be  established  or  declared  without  a  law 
of  the  legislative  body.  That  it  does  not  belong  to  the  tribunals 
to  take  notice  of  any  step  that  a  foreign  power  may  take  as  con- 
stituting a  state  of  war  between  France  and  itself. 

That  the  condemnation  demanded  of  the  said  ship  Fame  and 
of  her  cargo,  because  of  th.e  said  letter  of  marque,  can  not  be 


410  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

founded  upon  any  law,  and  can  not  and  ought  not  to  be  pro- 
nounced. The  said  ship  besides,  not  having  opposed  any  resist- 
ance, suffered  itself  to  be  visited  at  the  summons  which  was 
made  to  it  by  the  said  privateer.  There  is,  then,  no  occasion  to 
accede  to  the  demand  of  the  captors  upon  this  point. 

This  case  was  appealed  to  the  civil  tribunal  of  the  department,  and 
thence  to  the  Council  of  Prizes,  which  latter  tribunal,  on  the  13th 
December,  1800,  released  the  vessel  and  cargo,  in  accordance  with  the 
judgment  of  the  two  lower  tribunals.  (Schooner  John,  Blackler, 
master,  22  C.  Cls.  408.) 

The  counsel  for  the  United  States  has  argued  with  great  ingenuity 
and  learning  that  these  decrees  were  rendered  at  the  time  when  the 
treaty  of  September  30,  1800,  was  a  matter  of  negotiation ;  that  the 
French  Government  then  desired  to  retain  America  as  a  friend  and 
not  to  drive  her  over  to  the  enemies  of  France,  who  then  numbered 
nearly  all  of  the  sovereignties  of  Europe;  and  that  France  in  effect 
waived  her  legal  and  maritime  rights  so  that  she  might  smooth  the 
way  to  an  adjustment  of  all  differences  with  the  American  Govern- 
ment. This  might  be  so  held  if  it  were  a  defense  which  the  United 
States  could  properly  set  up — if  the  question  of  liability  were  not 
always  the  question,  "What  was  the  liability  of  France  before  the 
claims  were  relinquished  to  her?"  It  seems  undeniable  that  if  this 
court  were  an  international  tribunal  and  France  were  an  actual  defen- 
dant in  court,  no  one  would  think  it  possible  for  her  to  say  today 
what  .she  did  not  say  through  her  own  tribunals  just  one  hundred 
years  ago,  when  the  matter  was  in  litigation  and  the  rights  of  the 
American  owners  a  matter  of  contemporaneous  adjudication.  Ac- 
cordingly it  must  be  held  now,  as  it  has  been  held  before,  that  there 
was  no  war  which  accorded  to  France  general  belligerent  rights  or 
which  subjected  an  American  vessel  to  capture  and  condemnation  if 
she  were  at  the  time  without  fault. 

It  is  to  be  noted  in  this  case  that  the  Concord  was  not  subject  to 
condemnation  or  confiscation  because  of  any  act  or  paper  of  her  own. 
She  did  not  resist  search;  she  did  not  attempt  flight;  no  objection  was 
raised  by  the  French  tribunal  to  any  want  of  papers  or  to  the  char- 
acter of  any  paper  which  she  carried.  The  decree  narrates  that  she 
had  an  American  passport;  but  commissions  under  the  act  of  July  9, 
1798,  were  generally  styled  by  the  French  tribunals  letters  of 
marque.     She  does  not  appear  to  have  had  any  armament  whatever. 


THE  SHIP  ROSE  411 

and  her  crew,  as  far  as  appears,  consisted  of  only  18  men.  The 
question,  therefore,  whether  the  carrying  of  a  commission  under  the 
act  of  July  9,  1798,  was  evidence  of  aggressive  intent  which  would 
render  her  liable  to  capture  and  condemnation  is  not  presented  by 
the  evidence  in  this  case. 

The  counsel  for  the  Government  has  filed  a  motion  to  reopen  some 
of  the  cases  against  this  vessel  so  as  to  enable  the  defendants  to  plead 
an  indebtedness  on  the  part  of  the  original  claimants  to  the  United 
States.  Such  a  cross  demand  is  not  strictly  a  set-off,  inasmuch  as 
the  court  does  not  render  judgments  in  these  cases,  but  nevertheless 
it  is  an  equity  which  Congress  may  properly  consider  in  cases  where 
the  relief  to  be  afforded  by  Congress  is  a  matter  of  conscience  and 
equity.     (Ship  Parkman,  present  term.) 

All  of  these  motions,  with  one  exception,  have  been  withdrawn  or 
abandoned. 

In  the  case  of  Peter  Blight,  No.  1589,  it  is  found  that  $1,752.32 
became  due  to  the  United  States  on  a  custom-house  bond,  and  there 
is  no  evidence  to  establish  payment.  Whether  this  apparent  indebted- 
ness of  Peter  Blight,  the  original  claimant,  should  be  deducted  from 
the  award  in  favor  of  his  administrator  is  a  question  resting  exclu- 
sively in  the  discretion  of  Congress,  and  in  regard  to  it  the  court 
reports  no  conclusion  and  expresses  no  opinion. 

The  order  of  the  court  is  that  the  findings  and  conclusions  now  filed 
be  reported  to  Congress,  together  with  a  copy  of  this  opinion. 


The  Ship  ROSE^  [and  Other  Cases] 

[French  Spoliations,  120.  422,  1056.  2720.  2842.  4.118.  3875,  4484,  4,120.  4.151.     De- 
cided April  22,  1901] 

On  the  Proofs 

The  American  ship  Rose  resists  search,  in  an  action  lasting  2^  hours,  in  which 
she  loses  3  killed  and  14  wounded,  and  the  French  privateer  25  killed 
and  21  wounded. 
I.  Grave  apprehension  of  illegal  condemnation  will  not  justify  a  neutral  vessel 
in  resisting  the  right  of  search  by  a  belligerent, 
n.  Forcible  resistance  is  good  ground  for  condemnation,  except  in  cases  where 
a  neutral  is  justified  in  defending  against  extreme  violence  threatened  by 
a  cruiser  grossly  abusing  his  commission. 

1  Court  of  Claims  Reports,  vol.  36,  page  290. 


412  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

III.  The  Act  of  June  25,  1798^  (1  Stat.  L.  522),  authorizing  American  merchant 

vessels  to  defend  against  French  depredations,  could  not  change  the  law 
of  nations  or  impose  a  new  international  obligation  upon  France. 

IV.  The  French   spoliation  act  refers  to  municipal  and  international  law  and 

to  treaties.  The  court  must  apply  each  only  where  it  is  properly  applicable. 
V.  Where  no  wrong  was  done  according  to  international  law  or  treaty  stipula- 
tions, a  case  did  not  come  within  the  terms  of  the  treaty  of  1800  2  (Art. 
II),  and  no  liability  was  assumed  by  the  United  States. 
VI.  The  jurisdictional  act  contemplates  this  court  as  sitting  in  the  character  of 
an  international  tribunal  to  determine  the  diplomatic  rights  of  the  United 
States  against  France. 

The  Reporters'  statement  of  the  case : 

The  following  are  the  facts  of  this  case  as  found  by  the  court: 

I.  The  ship  Rose,  William  Chase,  master,  sailed  on  a  commercial 
voyage  from  Newburyport,  Mass.,  on  the  20th  of  March,  1799,  bound 
for  Surinam,  and  from  thence  sailed  on  the  23d  day  of  July,  1799, 
bound  home  for  Newburyport. 

While  pursuing  said  voyage  she  was  captured  on  the  high  seas,  on 
the  31st  day  of  July,  1799,  by  the  French  cruiser  Conquest  of  Egypt, 
mounting  14  guns  and  120  men,  after  an  action  of  two  hours  and  a 
half,  in  which  the  master  of  the  Rose  lost  his  mate  and  2  men  killed 
and  14  wounded,  and  the  Frenchman  had  25  killed  and  21  wounded, 
after  which  the  Rose  was  carried  into  Guadeloupe,  where,  on  the  18th 
Thermidor,  year  7  (August  6,  1799),  said  vessel  and  her  cargo  were 
condemned  by  the  tribunal  of  commerce  sitting  at  Basse-Terre,  Guade- 
loupe, under  the  following  decree : 

Judgment  and  condemnation  of  the  American  ship  Rose,  Capt. 
W.  Chase,  captured  by  the  privateer  Egypt  Conquered. 

18  Thermidor,  7th  year.  Extract  from  the  rolls  of  the  royal 
court  of  Guadeloupe  and  its  dependencies. 

In  the  name  of  the  French  people. 

The  court  of  commerce  and  prizes,  established  on  the  isle  of 
Guadeloupe,  sitting  at  the  Basse-Terre  of  the  said  isle,  at  its  usual 
session,  on  the  18th  of  the  month  Thermidor  and  the  7th  year  of 
the  French  Republic,  which  is  one  and  indivisible. 

Preamble.  In  view  of  information  communicated  the  14th  and 
15th  of  the  present  month,  Thermidor,  by  the  justice  of  peace 
stationed  at  Liberty  Port,  which  information  relates  to  the  cap- 

1  Supra,  p.  59.  2  Jnfra,  p.  487. 


THE  SHIP  ROSE  413 

ture  of  the  American  ship  Rose,  of  Newburyport,  Capt.  William 
Chase,  by  the  privateer  called  Egypt  Conquered,  Capt.  Lyklama. 
The  examination  of  the  papers  of  the  said  ship  by  citizen  Magne, 
sworn  interpreter  of  the  English  language,  at  Liberty  Port,  which 
papers,  as  well  as  the  translation  of  them,  have  been  lodged  in  the 
office.  The  associate  sworn  interpreter  of  the  English  language 
in  this  city  and  citizen  Minard  being  present  at  the  reading  of 
them.  In  view  of  these  documents,  the  president  in  his  report 
and  the  overseer  of  the  directory  in  his  suit  present  the  following 
as  the  result  of  their  deliberations: 

Considering  (according  to  the  above-mentioned  documents  and 
information)  that  it  is  evident  that  the  captain  of  the  said  ship 
has  neither  knowledge  nor  invoice  of  his  cargo  taken  at  Surinam, 
which  circumstance  makes  it  impossible  to  know  the  real  owner 
of  the  said  cargo. 

Considering  that  his  shipping  paper  {role  d' equipage)  is  not 
such  as  is  prescribed  by  the  model  annexed  to  the  treaty  of  the 
6th  February,  1778. 

Considering,  finally,  that  the  said  captain  was  bearer  of  a  com- 
mission from  the  President  of  the  United  States,  which  author- 
ized him  to  capture  French  armed  vessels  and  to  carry  them  into 
any  port  of  the  United  States;  a  commission  in  virtue  of  which 
the  captain  of  the  said  vessel  not  only  did  not  obey  the  summons 
of  the  French  privateer,  but  attacked  it  and  defended  himself 
till  he  was  subdued  by  force  of  arms.  In  view  of  these  facts  we 
shall  refer  to  the  following  articles  in  justification  of  our  pro- 
ceedings : 

In  the  first  place  the  3d  article  of  the  judgment  of  the  Execu- 
tive Directory  reminds  all  French  citizens  that  the  treaty,  passed 
the  6th  February,  '78,  has  been,  according  to  the  terms  of  its  12th 
article,  legally  modified  by  that  passed  at  London  the  19th  Novem- 
ber, 1794,  between  the  United  States  of  America  and  England. 
Consequently,  there  is  substituted  for  it  the  17th  article  of  the 
treaty  of  London,  dated  19th  November,  1794,  which  reads  as 
follows :  All  enemies'  merchandise,  or  that  which  is  not  satis- 
factorily proved  neutral,  and  which  is  shipped  under  American 
colors,  shall  be  confiscated,  but  the  vessel  on  board  of  which  it 
shall  have  been  found  shall  be  set  at  libertv^  and  returned  to  the 
owner.  In  the  second  place,  the  4th  article  of  the  same  judg- 
ment is  expressed  in  these  terms :  "In  conformity  with  the  law 
of  the  14th  February,  1793,  the  rules  and  regulations  adopted  the 
21st  October,  1744,  and  the  26th  July,  1778,  respecting  the  mode 
of  proving  the  ownership  of  vessels  and  neutral  merchandise, 
shall  be  executed  according  to  their  form  and  tenor.  Conse- 
quently every  American  ship  shall  be  declared  a  prize  which  shall 
not  have  on  board  a   shipping  paper  in  good   form,   such  as  is 


414  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

prescribed  by  the  model  annexed  to  the  treaty  of  the  6th  February, 
1778,  and  the  execution  of  which  is  ordered  by  the  25th  and  27th 
articles  of  the  same  treaty.  In  the  third  place,  the  12th  article 
of  the  ninth  record  of  prizes,  contained  in  the  statutes  of  the 
month  of  August,  1681,  runs  thus:  Every  vessel  which  shall 
refuse  to  strike  its  colours  after  the  summons  made  by  our  vessels 
to  those  of  our  subjects  armed  for  war  shall  be  obliged  to  do  it 
by  means  of  artillery  or  otherwise,  and  in  case  of  resistance  and 
contest  shall  be  declared  a  prize.  The  court  authorizing  the  suit 
of  the  Executive  Directory  declares  a  prize  the  said  American 
ship  Rose,  her  apparel  and  cargo,  and  orders  the  sale  of  them, 
in  the  customary  forms,  for  the  benefit  of  the  captors,  and  those 
who  armed  and  were  interested  in  the  privateer  Egypt  Conquered, 
an  inventory  being  previously  made  of  the  whole,  in  presence  of 
the  constituted  authorities.  Made  and  executed  at  the  court  in 
its  said  sitting,  at  which  were  present  citizens  Anthony  John  Bon- 
net, president;  Anthony  Cloder  and  Gabriel  Capoul,  judges,  and 
Lewis  Christopher  Blin  Herminier,  registers,  the  said  day,  month, 
and  year. 

Signed  at  the  registry. 

Bonnet,  President,  and 
Blin  Herminier,  Register. 

II.  The  ship  Rose  was  a  duly  registered  vessel  of  the  United  States, 
of  2.S0  36/95  tons  burthen,  was  built  at  Amesbury,  Mass.,  in  the  year 
1797,  and  was  owned  by  William  Bartlett,  a  citizen  of  the  United 
States. 

III.  The  cargo  of  the  Rose  consisted  of  coffee,  cotton,  cocoa,  and 
sugar,  and  was  principally  owned  by  William  Bartlett,  the  owner  of 
the  vessel.  William  Chase  and  Edmund  Bartlett,  citizens  of  the  United 
States,  owned  small  portions  of  the  cargo,  and  Samuel  Hopkinson, 
Enoch  Hale,  Jr.,  Smith  Adams,  and  Abel  Hale  had  adventures  on 
board  said  vessel. 

IV.  The  losses  by  reason  of  the  capture  and  condemnation  of  the 
Rose,  so  far  as  claims  have  been  filed  in  this  court,  were  as  follows : 

The  value  of  the  vessel $10,640.00 

The  freight  earnings  for  the  voyage 4,173.00 

The  value  of  the  cargo  owned  by  William  Bartlett 66,336.98 

The  value  of  the  cargo  owned  by  William  Chase 4,959.54 

The  value  of  the  cargo  owned  by  Edmund  Bartlett 3.820.00 

The  premium  of  insurance  paid  by  Edmund  Bartlett 200.00 

Amounting  in  all  to $90,129.52 


THE  SHIP  ROSE  415 

Special  Findings  Relating  to  the  Several  Cases 

V.  Case  No.  120.  William  Bartlett  was  the  sole  owner  of  the  vessel 
and  a  part  of  the  cargo,  upon  which  it  does  not  appear  that  there 
was   any   insurance. 

His  losses  were  as   follows : 

The  value  of  the  vessel $10,640.00 

The  freight  earnings  for  the  voyage 4,173.00 

The  value  of  the  cargo  owned  by  him 66,336.98 

Amounting  in  all  to $81,149.98 

VT.  Case  No.  1056.  William  Chase  was  the  owner  of  a  portion  of 
the  cargo,  upon  which  there  does  not  appear  to  have  been  any  in- 
surance. 

His  loss  was  as  follows : 

The  value  of  his  portion  of  the  cargo $4,959.54 

Vn.  Case  No.  2720.  Edmund  Bartlett  was  the  owner  of  a  part  of 
the  cargo.  He  insured  his  portion  of  the  cargo  on  the  6th  day  of 
June,  1799,  in  the  office  of  John  Pearson,  in  the  sum  of  $2,500,  pay- 
ing therefor  a  premium  amounting  to  $200. 

Thereafter  the  said  John  Pearson,  as  agent  for  the  underwriters, 
paid  to  the  said  Edmund  Bartlett  the  sum  of  $2,500  as  and  for  a 
total  loss. 

His  losses  were  as  follows : 

The  value  of  his  portion  of  the  cargo $3,820.00 

The  premium  of  insurance  paid 200.00 

Total $4,020.00 

Less  insurance  received $2,500.00 

Less  two  boxes  hats  sold 120.00 

$2,620.01.") 

Leaving  a  net  loss  to  Edmund  Bartlett  of .  .  .  .  $1,400.00 

VIIL  Case  No.  4318.  John  Wells,  James  Prince,  and  Zebedee 
Cook,  all  of  whom  were  citizens  of  the  United  States,  and  others  who 
have  not  appeared  in  this  court,  as  underwriters  in  the  office  of  John 


416  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

Pearson,  insured  Edmund  Bartlett  on  the  6th  of  June,  1799,  on  his 
portion  of  the  cargo  in  the  sum  of  $2,500. 

Thereafter  the  said  John  Pearson  paid  for  said  underwriters  to  said 
Edmund  Bartlett  the  sum  of  $2,500,  as  and  for  a  total  loss. 

The  vmderwriters  on  said  policy  who  have  appeared  in  this  court 
by  legal  representatives  and  the  loss  sustained  by  each  are  as  follows : 

John  Wells $300.00 

James  Prince  500.00 

Zebedee  Cook   200.00 

IX.  Case  No.  4320.  Edmund  Kimball  and  Zebedee  Cook,  citizens  of 
the  United  States,  as  underwriters  in  the  office  of  John  Pearson,  on 
the  18th  day  March,  1799,  insured  Smith  Adams  and  Abel  Hale  on 
their  adventure  in  the  sum  of  $350. 

Thereafter  the  said  John  Pearson,  as  agent  for  the  said  under- 
writers, paid,  on  the  18th  of  January,  1800,  to  the  said  Smith  Adams 
and  Abel  Hale  the  sum  of  $350  as  and  for  a  total  loss.  It  does  not 
appear  that  the  said  Adams  and  Hale  were  citizens  of  the  Utnited 
States.  The  underwriters  upon  said  policy  have  appeared  in  this  case 
by  their  legal  representatives  and  the  loss  sustained  by  each  is  as 
follows : 

Edmund   Kimball    ^ $175.00 

Zebedee  Cook    175.00 

X.  Case  No.  4351.  John  Pearson,  a  citizen  of  the  United  States,  as 
an  underwriter  in  his  own  office,  on  the  20th  of  January,  1799,  insured 
Samuel  Hopkinson  and  Enoch  Hale,  Jr.,  on  their  adventure  in  the 
sum  of  $100. 

Thereafter  the  said  John  Pearson,  on  the  28th  of  January,  1800,  paid 
to  the  said  Samuel  Hopkinson  and  Enoch  Hale,  Jr.,  the  sum  of  $100 
as  and  for  a  total  loss.  It  does  not  appear  that  said  Hopkinson  and 
Hale  were  citizens  of  the  United  States. 

The  underwriter  upon  said  policy  has  appeared  in  this  case  by  his 
legal  representative  and  the  loss  sustained  by  him  is  as  follows 

John    Pearson    $100.00 

XI.  The  claimants  have  produced  letters  of  administration  upon  the 
estate  represented  by  them  and  have  proved  to  the  satisfaction  of  the 


THE  SHIP  ROSE  417 

court  that  the  persons  whose  estates  they  represent  are  the  same  per- 
sons who  suffered  loss  through  the  capture  and  condemnation  of  the 
Rose. 

Said  claims  were  not  embraced  in  the  convention  between  the 
United  States  and  the  RepubHc  of  France  concluded  on  the  30th  of 
April,  1803.  They  were  not  claims  growing  out  of  the  acts  of  France 
allowed  and  paid  in  whole  or  in  part  under  the  provisions  of  the 
treaty  between  the  United  States  and  Spain  concluded  on  the  22d  day 
of  February,  1819,  and  were  not  allowed  in  whole  or  in  part  under  the 
provisions  of  the  treaty  between  the  United  States  and  France  of  the 
4th  of  July,  1831. 

The  claimants  in  their  representative  capacity  are  the  owners  of  said 
claims,  which  have  never  been  assigned ;  nor  does  it  appear  that  any 
of  said  claims  are  owned  by  an  insurance  company. 

Argument  for  the  Claimants 

Mr.  C.  W.  Clagett  for  the  claimants : 

{Mr.  John  Paul  Jones,  Mr.  R.  H.  Voorhees,  Mr.  Edvoard  Lander, 
Curtis  &  Pickett,  and  Mr.  John  W.  Butteriield  represented  different 
claimants.) 

If  a  vessel  and  cargo  prove  to  be  neutral  and  in  no  way  transgress 
the  rights  of  belligerents,  the  right  of  search  is  exhausted  and  the 
vessel  must  be  permitted  to  proceed.  (Lawrence's  Wheaton,  846; 
Woolsey's  International  Law,  sec.  10;  Hall's  International  Law,  sec. 
275.) 

It  was  well  known  at  the  time  of  the  French  spoliations  that  the 
French  tribunals  condemned  nearly  all  American  vessels,  irrespective 
of  the  fact  that  they  had  complied  with  all  the  requirements  of  inter- 
national law.  {Hooper  v.  U.  S.,  22  C.  Cls.  416;  Gushing  v.  U.  S.,  22 
C.  Cls.  1.) 

If  search  is  made,  not  to  protect  belligerent  rights,  but  to  harass  a 
neutral  which  has  complied  with  all  the  requirements  of  international 
law  for  non-compliance  with  the  regulations  of  the  country  to  which 
the  searching  vessel  belongs,  the  attempt  to  search  is  a  wrong  which 
may  be  resisted  without  subjecting  the  vessel  to  condemnation.  (1 
Kent.  154;  Lawrence's  Wheaton,  866.) 

The  principle  applied  to  neutral  vessels  captured  by  the  French  at 
this  time,  and  recaptured,  should  be  applied  to  cases  in  which  search 
was  resisted. 


418  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

It  is  a  settled  rule  that  neutral  vessels  recaptured  from  a  belligerent 
are  to  be  restored  without  payment  of  salvage,  on  the  ground  that  the 
vessel  would  have  been  restored  by  the  court  of  the  belligerent  coun- 
try; but  when  France  condemned  neutral  vessels  on  grounds  not  justi- 
fied by  international  law  the  rule  ceased,  and  salvage  was  allowed  in 
cases  of  recapture.  {The  Onskan,  2  Rob.  300;  Talbot  v.  Seeman,  1 
Cranch,  1 ;  Hooper  v.  U.  S.,  22  C.  Cls.  416.) 

By  the  act  of  June  25,  1798,  Congress  authorized  American  vessels 
to  resist  visitation  and  search  by  the  French. 

A  court  of  the  United  States  has  no  authority  to  declare  tortious  acts 
which  Congress  has  declared  lawful.  {The  Chinese  Exclusion  Act, 
130  U.  S.  581-601.) 

Mr.  Charles  W.  Russell  (with  whom  was  Mr.  Assistant  Attorney- 
General  Pradt)  for  the  defendants. 

Opinion  of  the  Court 

Weldon,  J.,  delivered  the  opinion  of  the  court: 

The  facts  show  that  the  ship  Rose,  William  Chase,  master,  sailed 
on  a  commercial  voyage  from  Newburyport,  Mass.,  on  the  20th  of 
March,  1799,  bound  for  Surinam,  and  thence  sailed  on  the  23d  of 
July,  1799,  bound  home  to  Newburyport. 

While  pursuing  the  last  voyage  she  was  captured  on  the  high  seas 
on  the  21st  of  July,  1799,  by  the  French  cruiser  L'Egypt  Conquise, 
mounting  14  guns  and  120  men;  after  an  action  of  two  and  one-half 
hours,  in  which  the  master  of  the  Rose  lost  three  men  killed  and  14 
wounded,  and  the  French  lost  25  killed  and  21  wounded,  the  Rose  was 
captured  and  taken  into  Guadeloupe,  where,  on  the  6th  day  of  August, 
1799,  the  vessel  and  cargo  were  condemned  by  the  tribunal  of  com- 
merce, sitting  at  Basse-Terre,  Guadeloupe,  under  a  decree  in  which 
it  is  alleged  that  "the  captain  of  said  ship  was  the  bearer  of  a  com- 
mission from  the  President  of  the  United  States  which  authorized 
him  to  capture  French  armed  vessels  and  carry  them  into  any  port 
of  the  United  States,  and  that  the  captain  of  the  vessel  resisted  until 
he  was  subdued  by  force  of  arms.  In  view  of  these  facts,  the  court 
makes  reference  to  articles  in  justification  of  said  proceedings."  The 
findings  establish  the  fact  that  the  American  ship  resisted  most  vig- 
orously the  attempted  right  of  search  upon  the  part  of  the  French 
ship,  and  we  are  to  determine  from  that  condition  as  an  incident  of  the 
seizure  whether  such  seizure  and  condemnation  were  illegal. 


THE  SHIP  ROSE  419 

The  legal  effect  of  resisting  search  on  the  part  of  the  American  ship, 
when  it  was  sought  to  be  exercised  on  the  part  of  the  French  ship, 
has  not  been  determined  by  any  adjudication  of  this  court  in  the  various 
cases  tried  under  the  Act  of  Congress,  giving  this  court  jurisdiction 
to  determine  the  claims  of  American  citizens  for  alleged  spoliations 
committed  by  the  French  prior  to  the  1st  day  of  July,  1801. 

The  nearest  approach  that  the  court  has  made  to  the  subject  of  the 
right  of  search  is  in  the  case  of  the  Nancy  (27  C.  Cls.  99).  In 
that  case  the  ship  sailed  from  Baltimore  in  1797;  was  captured  by  an 
English  ship  and  sent  to  St.  Nicolas  Mole,  and  there  the  master  was 
ordered  not  to  depart  without  a  convoy.  She  sailed  under  the  escort 
of  a  privateer  for  Jerome  and  returned  to  the  Mole  under  escort. 
On  the  return  voyage  the  Nancy  was  captured  by  a  French  privateer. 
It  is  said  in  that  case  that  "the  question  whether  a  neutral  vessel  laden 
with  neutral  cargo  is  liable  to  condemnation  if  captured  under  enemy 
convoy  has  never  been  directly  determined ;  but  on  a  review  of  the 
cases  and  elementary  writers  it  is  now  held  that  if  captured  when 
actually  and  voluntarily  under  the  protection  of  an  enemy,  she  is 
liable."  Sailing  under  the  convoy  of  an  enemy  is  the  exercise  of  the 
same  power  which  is  brought  into  requisition  on  the  part  of  a  neutral 
vessel  when  it  resists  the  right  of  search  by  actual  force. 

If  sailing  under  a  convoy  of  an  enemy  of  the  belligerent  is  a  just 
ground  for  seizure  and  condemnation,  it  must  follow  that  resisting 
the  exercise  of  search,  as  it  was  in  this  case,  involves  as  serious  con- 
sequences to  the  neutral  vessel  as  where  the  right  was  denied  by  the 
presence  and  use  of  a  convoy. 

It  is  not  necessary  to  multiply  authorities  to  establish  the  right  of 
search.  It  is  said  by  Chancellor  Kent  (1  Kent's  Commentaries,  p.  155) 
that  "in  order  to  enforce  the  rights  of  belligerent  nations  against  the 
delinquencies  of  neutrals,  and  to  ascertain  the  real  as  well  as  the 
assumed  character  of  all  vessels  on  the  high  seas,  the  law  of  nations 
arms  them  with  the  practical  power  of  visitation  and  search.  The 
duty  of  self-preservation  gives  to  belligerent  nations  this  right.  It  is 
founded  upon  necessity,  and  is  strictly  and  exclusively  a  war  right, 
and  does  not  rightfully  exist  in  time  of  peace,  unless  conceded  by 
treaty.  All  writers  upon  the  law^  of  nations,  and  the  highest  author- 
ities, acknowledge  the  right  in  time  of  war  as  resting  on  sound  prin- 
ciples of  public  jurisprudence  and  upon  the  institutes  and  practice  of 
all  great  maritime  powers."     It  is  said  by  the  same  authority,  page 


420  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

154:  "The  whole  doctrine  was  ably  discussed  in  the  English  high 
court  of  admiralty  in  the  case  of  the  Maria,  and  it  was  adjudged  that 
the  right  was  incontestable,  and  that  a  neutral  sovereign  could  not, 
by  the  interposition  of  force,  vary  that  right." 

In  that  case  it  is  said  by  Sir  William  Scott,  in  stating  the  prin- 
ciples of  international  law  upon  the  subject  of  search  and  of  the 
right  of  a  belligerent  to  search  neutral  vessels  engaged  in  commerce 
on  the  high  seas,  "that  the  right  of  visiting  and  searching  merchant 
ships  upon  the  high  seas,  whatever  be  the  ships,  whatever  be  the  cargo, 
whatever  be  the  destination,  is  an  incontestable  right  of  lawfully 
commissioned  cruisers  of  a  belligerent  nation.  I  say,  be  the  ships, 
the  cargoes,  and  destinations  what  they  may,  because  till  they  are 
visited  and  searched  it  does  not  appear  what  the  ships,  the  cargo,  or 
the  destinations  are,  and  it  is  for  the  purpose  of  ascertaining  these 
points  that  the  necessity  of  this  right  of  search  exists." 

Chancellor  Kent,  page  155,  in  further  elaboration  of  the  doctrine  of 
the  right  of  search,  states  the  circumstances  which  might  constitute 
an  exception  to  that  general  rule,  which  makes  it  the  duty  of  the 
neutral  to  subject  himself  to  the  jurisdiction  of  the  belligerent  in  the 
exercise  of  the  right  of  search.     He  says : 

There  may  be  cases  in  which  the  master  of  a  neutral  ship  may 
be  authorized  by  the  natural  right  of  self-preservation  to  defend 
himself  against  extreme  violence  threatened  by  a  cruiser  grossly 
abusing  his  commission ;  but  except  in  extreme  cases  a  merchant 
vessel  has  no  right  to  say  for  itself,  and  an  armed  vessel  has  no 
right  to  say  for  it,  that  it  will  not  submit  to  visitation  and  search 
or  be  carried  into  a  proximate  port   for  judicial   inquiry. 

The  circumstances  of  this  capture  do  not  indicate  that  the  condition 
cited  by  Chancellor  Kent  (which  may  be  regarded  as  an  exception  to 
the  general  rule)  existed  in  this  case.  While  there  might  have  been 
in  the  minds  of  the  crew  of  the  neutral  vessel  grave  apprehensions  .of 
ultimate  condemnation,  even  with  reference  to  the  legitimate  defenses, 
that  condition  of  apprehension  upon  the  part  of  the  resisting  neutral 
did  not  justify  him  in  denying  the  right  of  search  to  the  belligerent. 
The  circumstances  of  this  case  disclose  a  most  vigorous  assault  and 
defense,  there  being  twenty-four  men  killed  and  thirty-six  wounded 
during  the  encounter  between  the  respective  vessels.  This  was  actual 
resistance,  and  was  only  overcome  by  the  most  determined  effort  upon 
the  part  of  the  capturing  vessel. 


THE  SHIP  ROSE  421 

The  right  of  search  is  so  sacred  in  the  view  of  international  law  that 
it  is  protected  by  enforcing  the  consequences  of  resistance  where  no 
actual  resistance  is  made.  As  in  the  case  of  a  convoy,  it  has  been 
held  by  this  court  in  the  case  of  the  Nancy  (27  C.  Cls.  99)  that 
the  presence  of  a  convoy  is  constructive  resistance  and  a  denial  of  the 
right  of  search,  which  authorizes  seizure  and  consequent  condemna- 
tion. 

It  is  most  strenuously  and  ably  argued  by  counsel  that  at  the  date 
of  capture  there  was  in  existence  the  statute  of  June  25,  1798,  entitled 
"An  Act  to  authorize  the  defense  of  merchant  vessels  of  the  United 
States  against  French  depredations"  (1  Stat.  L.  572),  and  that  by 
virtue  of  the  provisions  of  that  act  the  commander  and  crew  of  a 
vessel  had  a  right  to  resist  by  all  means  in  their  power  an  attempt 
upon  the  part  of  a  French  commander  and  crew  to  search  the  Amer- 
ican vessel.    It  is  provided  in  that  statute — 

That  the  commander  and  crew  of  any  merchant  vessel  of  the 
United  States,  owned  wholly  by  a  citizen  or  citizens  thereof,  may 
oppose  and  defend  against  any  search,  restraint,  or  seizure  which 
shall  be  attempted  upon  such  vessel  or  upon  any  other  vessel 
owned,  as  aforesaid,  by  the  commander  or  crew  of  any  armed 
vessel  sailing  under  French  colors,  or  acting  or  pretending  to  act 
by  or  under  the  authority  of  the  French  Republic ;  and  may  repel 
by  force  any  assault  or  hostility  which  shall  be  made  or  committed 
on  the  part  of  such  French  or  pretended  French  vessel  pursuing 
such  attempt,  and  may  subdue  and  capture  the  same,  and  may  also 
retake  any  vessel  owned  as  aforesaid  which  may  have  been  cap- 
tured by  any  vessel  sailing  under  French  colors,  or  acting  or  pre- 
tending to  act  by  or  under  authority  from  the  French  Republic. 

Whatever  may  be  said  as  to  the  condition  or  status  of  the  legal 
rights  and  obligations  of  the  French  and  American  Governments  before 
the  act  of  July  9,  1798  (1  Stat.  U.  578),  it  must  be  assumed  that  after 
that  period  the  principles  and  rules  of  international  law  determined  and 
controlled  the  parties  with  reference  to  their  rights  on  the  high  seas. 

It  is  said,  in  the  case  of  the  Nancy  (supra),  "it  has  been  urged  that 
the  statute  of  the  United  States  authorizes  resistance  by  our  merchant- 
men to  French  visitation  and  search,  to  which  there  is  the  simple  an- 
swer that  no  single  State  can  change  the  law  of  nations  by  its  muni- 
cipal regulations." 

The  contention  of  claimants'  counsel  with  reference  to  the  rights 
guaranteed  to  American  merchantmen  under  and  by  virtue  of  the  pro- 


422  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

visions  of  the  act  of  1798  is  fully  answered  by  the  decision  of  this 
court  in  the  above  case.  If,  therefore,  at  the  time  of  this  seizure  there 
was  any  conflict  between  the  municipal  law  of  the  United  States,  as 
exemplified  in  the  statute,  and  the  well-recognized  principles  of  inter- 
national law,  the  latter  must  prevail  in  the  determination  of  the  rights 
of  the  parties. 

By  the  provisions  of  the  act  giving  this  court  jurisdiction  to  ascer- 
tain the  claims  of  American  citizens  for  spoliations  committed  by  the 
French  prior  to  the  31st  of  July,  1801,  it  is,  in  substance,  provided  that 
the  validity  of  said  claims  shall  be  determined  according  to  the  rules 
of  law,  municipal  and  international,  and  the  treaties  of  the  United 
States  applicable  to  the  same.  In  order  to  perform  the  duties  con- 
sistent with  the  requirements  of  the  statute,  the  court  must  give  each 
department  of  the  law  full  recognition  and  force  when  properly  ap- 
plicable to  the  facts  and  circumstances  of  the  controversy  involved  in 
the  litigation. 

The  rights  of  the  claimant  are  to  be  measured  by  the  unlawful  acts 
of  France,  and  unless  a  wrong  exists  under  the  rules  of  international 
law,  no  liability  can  attach  to  the  United  States ;  because,  by  the  treaty 
of  1800,  it  was  only  the  claims  growing  out  of  the  wrongful  act  of 
France  for  which  the  United  States  had  a  diplomatic  claim  and  which 
were  assumed  to  be  paid  to  the  citizen  whose  individual  right  was 
violated  in  that  wrong. 

This  court  in  making  the  investigation  contemplated  by  the  act  of 
our  jurisdiction  is  sitting  in  the  character  of  an  international  tribunal, 
to  determine  the  diplomatic  rights  of  the  United  States  as  they  existed 
against  France  prior  to  the  ratification  of  the  treaty  of  September 
30,  1800. 

The  municipal  law  in  the  absence  of  a  treaty  must  be  subordinated 
to  international  law  when  they  come  in  antagonism,  as  that  is  the  law 
common  to  both  parties. 

Where  the  question  is  not  exclusively  within  the  domain  of  inter- 
national law  then  the  municipal  law  may  be  invoked  to  determine  the 
proper  solution  of  the  question.  The  rules  of  property  by  which  the 
citizen  owned  the  subject-matter  of  the  seizure  and  condemnation  may 
be  properly  applied  in  ascertainment  of  his  rights,  and  so  may  many 
questions  of  the  law  of  evidence  be  decided  in  accordance  with  the 
municipal  law  of  the  party  whose  rights  have  been  violated.  Congress, 
in  the  enactment  of  the  law  of  our  jurisdiction,  must  be  presumed  as 


THE  SHIP  ROSE  423 

having  recognized  many  of  the  principles  of  municipal  law  incident 
to  our  forms  of  judicial  procedure  and  determination. 

It  has  been  argued  that  the  belligerent,  in  making  the  attack  on  the 
vessel  of  the  claimant,  was  not  in  the  exercise  of  the  legal  right  of 
search  as  incident  to  him  as  a  belligerent,  but  that  it  was  an  assault, 
the  object  and  purpose  of  which  was  the  seizure  and  condemnation 
without  reference  to  the  fact  or  condition  of  being  a  neutral  vessel  of 
the  United  States  engaged  in  the  peaceful  and  lawful  commerce  of 
the  sea ;  that  the  condition  existing  between  the  two  governments  and 
peoples  was  such  that  all  respect  of  neutral  rights  had  ceased,  and 
that  force,  fraud,  and  violence  prevailed,  and  in  that  connection  much 
is  said  as  to  the  right  of  self-defense. 

The  claimants  are  treading  on  very  dangerous  ground  when  they 
urge  the  higher  law  of  self-preservation.  Self-defense  is  founded  on 
the  theory  that  it  is  the  only  remedy,  and  that,  being  the  only  remedy, 
it  presupposes  the  absence  of  all  law  protecting  the  rights  of  him  who 
asserts  the  prerogative  of  self-defense.  If  the  right  of  self-defense 
prevailed  to  the  extent  of  repelling  force  by  force,  and  was  incident  to 
the  crew  of  the  ship  captured,  then  all  other  law  was  silent  and  war 
prevailed,  which  condition  would  be  most  disastrous  to  the  case  of  the 
claimants. 

As  we  have  quoted  in  another  case,  decided  at  the  present  term  of 
court,  from  the  opinion  delivered  by  Sir  William  Scott  in  the  case  of 
the  Maria,  in  1  C.  Rob.  340,  so  we  quote  upon  the  subject  of  the  right 
of  self-defense  in  this  case: 

How  stands  it  by  the  general  law  ?  I  do  not  say  that  cases  may 
not  occur  in  which  a  ship  may  be  authorized  by  the  natural  rights 
of  self-preservation  to  defend  itself  against  extreme  violence 
threatened  by  a  cruiser  grossh^  abusing  his  commission  ;  but  where 
the  utmost  injury  threatened  is  the  being  carried  in  for  inquiry 
into  the  nearest  port,  subject  to  a  full  responsibility  in  costs  and 
damages,  if  this  is  done  vexatiously  and  without  just  cause,  a  mer- 
chant vessel  has  not  a  right  to  say  for  itself  (and  an  armed  vessel 
has  not  a  right  to  say  for  it),  "I  will  submit  to  no  such  inquiry, 
but  I  will  take  the  law  into  my  own  hands  by  force."  What  is  to 
be  the  issue,  if  each  neutral  vessel  has  a  right  to  judge  for  itself 
in  the  first  instance  whether  it  is  rightly  detained,  and  to  act  upon 
that  judgment  to  the  extent  of  using  force?  Surely  nothing  but 
battle  and  bloodshed,  as  often  as  there  is  anything  like  an  equality 
of  force  or  an  equality  of  spirit. 


424  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

'  For  the  reasons  above  stated  the  court  decides,  as  a  conclusion  of 
law,  that  the  seizure  and  condemnation  were  lawful,  and  that  the  own- 
ers and  insurers  had  no  valid  claim  of  indemnity  therefor  upon  the 
French  Government  prior  to  the  ratification  of  the  convention  between 
the  United  States  and  the  French  Republic,  concluded  on  the  30th  day 
of  September,  1800,  and  that  the  claims  were  not  relinquished  to 
France  by  the  Government  of  the  United  States  by  said  treaty  in  part 
consideration  of  the  relinquishment  of  certain  national  claims  of 
France  against  the  United  States,  and  that  the  claimants  are  not 
entitled  to  recover  from  the  United  States. 

The  facts  in  detail,  with  a  copy  of  this  opinion,  will  be  certified  to 
Congress  in  accordance  with  the  statute. 


The  Schooner  JANE^  [and  Other  Cases] 

[French   Spoliations,  848,   5446,  5455.     Decided  December  2,    1901] 

On  the  Proofs 

The  Jane,  being  on  the  high  seas,  descries  a  sail,  which  immediately  gives  chase. 
The  Jane  makes  all  sail  to  get  away,  but  the  other  vessel  comes  up  and 
fires  a  gun  at  her,  when  it  is  discovered  that  she  is  a  cruiser.  The  Jane 
immediately  heaves  to ;  the  cruiser  fires  another  gun  with  ball,  and  also 
musketry.  The  Jane  returns  the  fire  with  one  gun.  The  cruiser  con- 
tinues to  fire  and  the  Jane  hauls  down  her  colors.  The  French  prize  court 
condemns  the  vessel  on  other  grounds  than  that  of  resistance  to  search. 
I.  The  visitation  and  search  of  neutral  vessels  at  sea  is  a  belligerent  right. 
II.  It  was  in  1799  an  undisputed  rule  of  international  law  that  deliberate  and 
continued  resistance  to  search  on  the  part  of  a  neutral  to  a  lawful  cruiser 
should  be  followed  by  the  legal  consequence  of  confiscation. 

III.  The  object  of  search  is  to  get  evidence  of  the  fact  of  neutrality  of  vessel 

and  cargo. 

IV.  The  Act  of  July  p,  1798"^  (1  Stat.  L.  578),  which  authorized  merchant  vessels 

to  carry  arms  for  protection,  could  not  change  the  rule  of  international 
law  which  gave  a  belligerent  a  right  of  search. 
V.  A  court  can  not  differentiate  degrees  of  resistence  which  will  render  a  vessel 
liable  or  not  liable  to  condemnation  for  resisting  search. 
VI.  Where  an  American  vessel  attempted  flight  from  an  unknown  vessel,  but 
on  discovering  that  she  was  a  French  cruiser,  hove  to,  and  after  being  then 
fired  into  with  ball  and  musketry  returned  the  fire,  it  was  resistance  to 
search. 

1  Court  of  Claims  Reports,  vol.  2)7,  page  24.  2  Supra,  p.  65. 


THE  SCHOONER  JANE  425 

The  Reporter's  statement  of  the  case : 

The  following  are  the  facts  of  the  case  as  found  by  the  court: 

I.  The  schooner  Jane,  Peter  Sorensen,  master,  sailed  from  Balti- 
more, Md.,  on  the  15th  day  of  July,  1799,  bound  for  Curasao. 

While  peacefully  pursuing  her  said  voyage,  on  the  27th  day  of  July, 
1799,  she  was  captured  on  the  high  seas  by  the  French  privateer 
Alliance,  Captain  Dupuy,  armed  with  twelve  guns,  and  taken  to  Porto 
Rico,  where  both  vessel  and  cargo  were  condemned  by  the  decree  of 
the  French  prize  tribunal  sitting  at  Basse-Terre,  Guadeloupe,  on  the 
13th  day  of  September,  1799,  whereby  both  vessel  and  cargo  became 
a  total  loss  to  the  owners. 

The  grounds  of  condemnation,  as  set  forth  in  the  decree  of  con- 
demnation, are  (1)  that  said  schooner  had  a  letter  of  marque;  (2) 
that  said  vessel  had  no  role  d' equipage;  (3)  that  one  of  the  invoices, 
shipped  on  board,  proved  to  be  two  trunks  of  English  ginghams. 

The  facts  as  to  the  capture  of  the  Jane  are  set  forth  in  the  protest 
of  the  master,  which  is  as  follows : 

In  the  city  of  St.  John,  of  Puerto  Rico,  on  the  27th  July,  1799, 
at  ab't  4  p.m.,  appeared  in  my  office  Peter  Sorensen,  mast'r  of 
the  sch.  Jane,  and  Jeffrey  Dulano,  mate,  and  said  that  having 
sailed  f'm  Baltimore  on  the  15th  inst.,  bound  to  Curacao,  belong- 
ing to  the  Batavian  Republic,  with  a  cargo  of  flour,  raisins,  brandy, 
and  other  articles,  they  proceeded  without  accident  until  the  27th 
of  said  month,  when  they  made  this  is'd  of  P'to  Rico,  bearing 
SE.  by  vS.,  distant  6  leagues,  at  break  of  day,  and  running  before 
the  wind  to  leeward  of  s'd  is'd,  at  9  a.m.,  they  descried  a  sail 
to  windward,  which  immediately  gave  chace  to  us,  while  we  made 
all  sail  to  get  away  from  her ;  but  she  soon  came  up  with  and 
fired  a  gun  at  us,  when  we  discovered  to  be  a  cruizer,  and  imme 
diately  hove  too,  while  she  fired  another  gun  with  ball  and  some 
musketry  at  us,  which  we  returned  with  one  gun,  and  the  pri- 
vateer continuing  to  fire  her  great  guns  and  small  arms,  w'h 
damaged  our  sails,  we  were  obliged,  for  the  safety  of  our  lives, 
to  haul  down  our  colors.  Immediately  a  prize-master  and  12  men 
were  sent  on  board  the  schooner,  and  we  were  carried  on  board 
the  privateer,  Avith  all  the  ship's  paper,  which  we  found  she  was 
called  the  Alliance,  Capt.  Dupuy,  mounting  12  guns,  w'h  a  crew 
of  90  men.  And  the  captain,  after  examining  the  papers,  or- 
dered to  steer  for  this  port,  where  we  arrived  on  the  same  day. 
the  27th  inst.  They  therefor  protest,  etc.,  etc.,  against  I'citizen 
Dupuy.  his  owner,  and  all  others  whom  it  may  concern,  for  all 


426  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

damages,  etc.,  etc.,  to  reclaim  the  same  when  and  where  oppor- 
tunity may  serve. 

II.  The  Jane  was  a  duly  registered  vessel  of  the  United  States,  of 
90  69/95  tons  burden;  was  built  at  Norfolk,  Va.,  in  the  year  1798, 
and  was  owned  by  David  Stewart,  David  C.  Stewart,  and  John 
Stewart,  composing  the  firm  of  David  Stewart  &  Sons,  merchants  of 
Baltimore  and  citizens  of  the  United  States. 

III.  The  cargo  of  the  Jane  consisted  of  brandy,  raisins,  and  flour, 
and  was  owned  by  said  David  Stewart  &  Sons,  the  owners  of  the 
vessel.  Edward  Courtney  had  also  on  board  an  invoice  of  dry  goods, 
for  which  no  claim  is  made. 

IV.  The  losses  by  reason  of  the  capture  and  condemnation  of  the 
Jane  are  as  follows  : 

Value  of   the   vessel    $3,630.00 

The   freight   earnings    1,510.00 

Cargo  owned  by  David  Stewart  &  Sons 4,860.00 

Cargo  owned  by  Edward  Courtney    1,214.31 

Premium  on  insurance  paid  by  David  Stewart  &  Sons  on 

vessel    625.00 

Premium  of  insurance  paid  by  David  Stewart  &  Sons  on 

cargo    625.00 

Premium  of  insurance  paid  by  Edward  Courtney  on  cargo  125.00 

Amounting  in   all  to    $12,589.31 

V.  On  September  2,  1799,  said  David  Stewart  &  Sons  insured  the 
vessel  and  cargo  with  the  Marine  Insurance  Office,  of  Baltimore,  in 
the  sum  of  $10,000,  being  $5,000  on  the  vessel  and  $5,000  on  the 
cargo,  paying  therefor  a  premium  of  12^  per  cent,  or  $1,250. 

Thereafter  said  insurance  office  paid  to  said  David  Stewart  &  Sons 
the  sum  of  $10,000,  as  and  for  a  total  loss  thereon. 

On  August  23,  1799,  Edward  Courtney  insured  his  interest  in  said 
cargo  with  the  Marine  Insurance  Office,  of  Baltimore,  in  the  sum  of 
$1,000,  paying  therefor  a  premium  of   I2y2  per  cent,  or  $125. 

Thereafter  said  insurance  office  paid  to  said  Courtney  the  sum  of 
$1,000,  as  and  for  a  total  loss  thereon. 

VI.  The  losses  to  the  different  claimants  by  reason  of  said  capture 
and  condemnation  were  as  follows : 


THE  SCHOONER  JANE  427 

David  Stewart  &  Sons : 

The  value  of  the  vessel  $3,630.00 

The  freight  earnings    1,510.00 

The  value  of  their  cargo   4,860.00 

Premiums  of  insurance  paid    1,250.00 

Total    $11,250.00 

Less   insurance   received    10,000.00 

Leaving  a  net  loss  to  them  of $1,250.00 

VII.  Ferdinand  C.  Latrobe  is  the  receiver  duly  appointed  by  the  cir- 
cuit court  of  Baltimore  City,  Md.,  of  the  estates  of  Aquilla  Brown, 
John  Sherlock,  and  George  Grundy,  representing  all  the  partners  un- 
derwriting in  the  Marine  Insurance  Office. 

VIII.  The  said  administrator  and  receiver  have  been  duly  ap- 
pointed and  represent  the  parties  interested  in  the  estate  of  the  said 
decedents. 

Mr.  W.  T.  S.  Curtis  for  the  claimants.  Mr.  Frank  P.  Clark  was  on 
the  brief. 

Mr.  Charles  IV.  Russell  for  the  defendants. 

Howry,  J.,  delivered  the  opinion  of  the  court : 

The  schooner  Jane^  Sorensen,  master,  sailed  from  Baltimore,  Md., 
on  July  15,  1799,  bound  for  Curagao.  While  peacefully  pursuing  her 
N'oyage  July  27,  1799,  the  schooner  was  captured  on  the  high  seas  by 
the  French  privateer  Alliance  and  taken  to  Porto  Rico,  where  both 
vessel  and  cargo  were  condemned  by  decree  of  the  French  prize  tri- 
bunal sitting  at  Basse-Terre,  Guadeloupe,  on  September  13,  1799. 
The  vessel  and  cargo  became  a  total  loss  to  the  owners  by  virtue  of 
the  condemnation.  The  grounds  set  forth  in  the  decree  of  condemna- 
tion were  that  the  schooner  had  a  letter  of  marque,  that  she  was  with- 
out any  role  d'cquipnge,  and  that  one  of  the  invoices  shipped  on  board 
proved  to  be  two  trunks  of  English  ginghams. 

The  master's  protest  details  the  capture  of  his  schooner  in  the  fol- 
lowing language: 

They  descried  a  sail  to  windward,  which  immediately  gave 
chase  to  us,  while  we  made  all  sail  to  get  away  from  her ;  but 
she  soon  came  up  with  and  fired  a  gun  at  us,  when  we  discovered 


428  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

her  to  be  a  cruiser,  and  immediately  hove  to,  while  she  (the 
cruiser)  fired  another  gun  with  ball  and  some  musketry  at  us, 
v/hich  we  returned  with  one  gun,  and  the  privateer  continuing 
to  fire  her  great  guns  and  small  arms,  which  damaged  our  sails, 
we  were  obliged,  for  the  safety  of  our  lives,  to  haul  down  our 
colors. 

It  is  not  necessary,  in  the  view  of  the  court,  to  notice  the  grounds 
of  decision  by  the  prize  tribunal,  except  as  it  relates  to  the  matter  of 
search. 

The  right  of  visitation  and  search  of  neutral  vessels  at  sea  is  a 
belligerent  right,  essential  to  the  exercise  of  the  right  of  capturing 
enemy's  property,  contraband  of  war,  and  vessels  committing  a  breach 
of  blockade.  It  is  essential,  in  order  to  determine  whether  the  ships 
themselves  are  neutral  and  documented  as  such,  according  to  the  law 
of  nations  and  treaties,  even  if  the  right  of  capturing  enemy's  prop- 
erty be  ever  so  strictly  limited. 

The  practice  of  maritime  captures  could  not  exist  without  the  privi- 
lege, and  accordingly  the  leading  sea  powers  of  the  world  framed  their 
regulations  in  assertion  of  the  right.  It  was  the  undisputed  rule  of 
the  British  Admiralty,  according  to  an  order  of  the  council  (1664,  art 
12,  and  affirmed  by  proclamation  in  1672)  which  directed  that  when 
any  ship  met  withal  by  the  royal  navy  shall  fight  or  make  resistance 
the  ship  and  goods  should  be  adjudged  lawful  prize.  The  French  had 
previously  (1681)  set  the  example  by  a  declaration  in  their  celebrated 
ordinance  of  marine  that  every  vessel  should  be  good  prize  in  case 
of  resistance  and  combat.  Resistance  alone  under  this  ordinance  was 
deemed  sufficient  by  Valin  in  his  Commentary  (81),  but  the  Spanish 
ordinance  of  1718,  which,  the  authorities  say,  was  copied  from  the 
French  ordinance,  expressed  it  in  the  disjunctive,  "in  case  of  re- 
sistance or  combat."     (Dana's  Wheat.  Inter.  L.,  8th  ed.,  sec.  526.) 

Three  prmciples  were  established  in  the  high  court  of  admiralty  in 
the  memorable  case  of  The  Maria  (1  C.  Rob.  340).  These  were  that 
the  right  of  visiting  and  searching  merchant  ships  on  the  high  seas 
was  an  incontestable  right  of  the  lawfully  mentioned  cruisers  of  a 
belligerent  nation,  that  the  authority  of  a  neutral  sovereign  being  in- 
terposed could  not  legally  vary  the  right  of  a  lawfully  mentioned  bel- 
ligerent cruiser,  and  that  the  penalty  for  the  violent  contravention  of 
the  belligerent  right  was  confiscation  of  the  property  so  withheld  from 
visitation  and  search.     In  that  decision,  delivered  in  June,   1799,  the 


THE  SCHOONER  JANE  429 

vessel  was  condemned  for  sailing  under  convoy  of  an  armed  ship  for 
the  purpose  of  resisting  visitation  and  search.  The  international  rule 
on  the  subject  is  conceded  by  text  writers  to  have  been  most  ably 
summed  up  by  the  judgment  in  that  case,  and  decisions  since  then 
have  mainly  followed  in  approval  of  the  reasons  there  given  for  the 
judgment  of  the  court.  So  that  it  has  come  to  be  accepted  as  a  settled 
rule  (stated  by  Sir  William  Scott,  upon  the  authority  of  Vattel,  the 
institutions  of  his  own  and  other  maritime  countries)  that  the  de- 
liberate and  continued  resistance  of  search  on  the  part  of  a  neutral 
vessel  to  a  lawful  cruiser  will  always  be  followed  by  the  legal  conse- 
quence of  confiscation. 

The  detention  of  a  neutral  vessel  is  to  ascertain,  not  by  the  flag 
merely,  which  may  be  fraudulently  assumed,  but  by  the  documents 
themselves  on  board,  whether  she  is  really  neutral.  The  object  of 
searching  ostensible  neutrals  is  to  get  evidence  as  to  the  fact  of  neu- 
trality and  if  the  cargo  be  not  enemy's  property ;  or  if  neutral,  whether 
they  are  carrying  contraband ;  or  whether  the  vessels  are  in  the  service 
of  the  enemy  in  the  way  of  carrying  military  persons  or  dispatches  or 
sailing  in  prosecution  of  an  intent  to  break  blockade.  It  is  sometimes 
necessary  to  examine  papers  and  inspect  the  vessels  as  well  as  the 
cargoes  and  persons  on  board,  and  the  question  as  to  the  propriety 
of  the  capture  of  each  vessel  is  a  mixed  question  of  law  and  fact. 

This  right  of  search  is  the  right  of  force,  though  of  lawful  force, 
and  "a  lawful  force  can  not  be  lawfully  resisted."  But  the  Jane  un- 
dertook to  resist.  Before  sailing  she  was  provided  with  a  com- 
mission. Presumptively  she  bore  this  commission  to  subdue  and 
capture  French  vessels  under  the  act  of  July  9,  1798,  1  Stat.  L.  578 
(Avhich  was  enacted  to  further  protect  the  commerce  of  the  United 
States).  True,  this  act  had  no  international  force.  The  powers  not 
only  did  not  recognize  it  as  possessing  any  significance,  but  this  court 
has  since  declared  that  no  single  State  could  change  the  law  of  nations 
by  its  municipal  regulations.  (The  Nancy,  27  C.  Cls.  99.)  As  the 
rules  of  international  law  determine  and  control  parties  with  refer- 
ence to  their  rights  on  the  high  seas  (The  Ship  Rose,  36  C.  Cls. 
290),  so  it  follows  that  the  right  given  by  the  domestic  statute  to  op- 
pose and  defend  against  any  search,  restraint,  or  seizure  gave  way 
to  the  international  nile.  The  right  of  defense  was  subordinated  to 
the  right  of  search. 

Whatever  the  purpose  of  the  Jane  in  bearing  a  commission,  the  fact 


430  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

remains  she  did  resist.  Her  master  was  prevented  from  successfully 
acting  upon  his  instructions  only  by  an  irresistible  force.  He  did  the 
best  he  could  to  resist  by  the  fire  of  one  gun  and  only  struck  his  colors 
when  there  was  no  help  for  it.  Under  these  circumstances  his  acts 
were  acts  of  resistance  and  of  combat,  as  far  as  he  could  resist  and 
fight. 

The  attempt  to  avoid  search  failed  because  of  the  superior  speed 
of  the  cruiser,  which  fired  a  gun  at  the  fleeing  vessel.  The  fire  of 
that  gun  was  intended  to  cause  detention.  The  master  of  the  vessel  in 
flight  hove  to  only  when  the  cruiser  came  up ;  the  latter  firing  another 
gun  with  ball  and  musketr}^  It  does  not  appear  that  any  damage 
was  done  or  intended  to  be  done  by  the  second  fire  beyond  an  exer- 
cise of  the  force  necessary  on  the  part  of  the  cruiser  to  compel  obe- 
dience to  search.  The  Jane  returned  the  fire,  and  hauled  down  her 
colors,  not  from  choice,  but  necessity.  Can  it  be  doubted  from  the 
master's  statement  that  this  case  would  not  have  arisen  had  the  mas- 
ter been  able  to  make  a  successful  fight? 

When,  in  the  determination  of  these  cases,  this  court  undertakes  to 
differentiate  the  degrees  of  resistance  we  tread  upon  uncertain  ground. 
\Ye  invade  the  right  of  the  belligerent  to  protect  itself  against  the 
possible  unlawful  acts  of  a  neutral,  and  this  can  not  be  safely  done 
without  running  counter  to  those  rules  which  every  nation  claims  for 
itself  to  protect  its  authority  and  power  against  those  seeking  to  de- 
stroy it  and  those  aiding  in  the  attempt. 

For  the  reasons  given  the  court  decides,  as  a  conclusion  of  law,  that 
the  seizure  was  lawful  and  that  the  owners  and  insurers  had  no  valid 
claim  of  indemnity  upon  the  French  Government  prior  to  the  ratifica- 
tion of  the  convention  between  the  United  States  and  the  French  Re- 
public, concluded  on  the  30th  day  of  September,  1830,  and  that  the 
claims  were  not  relinquished  to  France  by  the  Government  of  the 
United  States  by  said  treaty  in  part  consideration  of  the  relinquish- 
ment of  certain  national  claims  of  France  against  the  United  States, 
and  that  the  claimants  are  not  entitled  to  recover  from  the  United 
States. 

The  findings  of  fact,  with  a  copy  of  this  opinion,  will  be  certified 
to  Congress  in  accordance  with  the  terms  of  the  statute. 

NoTT,  Ch.  J.,  dissenting: 

In  1799,  as  at  the  present  time,  the  usage  of  the  sea  which  governed 


THE  SCHOONER  JANE  431 

the  actions  of  a  belligerent  cruiser  and  a  neutral  merchantman  was 
this : 

On  sighting  a  strange  sail  a  neutral  merchantman  might,  and  ordi- 
narily would,  avoid  the  stranger  by  changing  her  course,  if  necessary, 
and  crowding  sail.  It  was  then  incumbent  upon  a  bellig'erent  cruiser, 
if  she  would  exercise  her  right  of  search,  to  make  chase  and  con- 
tinue it  until  she  got  within  gunshot  distance,  and  to  disclose  her 
national  character,  and  to  fire  a  shot  across  the  bow  of  the  merchant- 
man. Until  the  cruiser  accomplished  this,  the  merchantman  was  at 
liberty  to  continue  her  flight  and  was  not  regarded  as  constructively 
resisting  search. 

In  the  words  of  the  leading  naval  writer  of  our  time  (Capt.  Alfred 
T.  Mahan),  the  "neutral  is  bound  to  submit  to  the  right  of  search 
when  overtaken,  but  is  in  no  wise  bound  to  facilitate  it."  On  the  shot 
being  fired  across  her  bow  it  was  obligatory  upon  the  merchantman 
to  display  her  colors,  if  she  had  not  already  done  so,  and  heave  to 
and  submit  to  visitation  and  search.  On  her  heaving  to  and  display- 
ing her  colors,  it  became  the  duty  of  the  cruiser  to  immediately  send 
an  officer  on  board  the  merchantman  to  inspect  her  papers  and,  if  he 
saw  fit,  exercise  the  right  of  search.  The  merchantman  was  not 
bound  to  haul  down  her  flag,  which  was  the  badge  both  of  her  na- 
tionality and  her  neutrality. 

In  the  present  case  all  of  these  conditions  were  complied  with. 
The  Jane  did  display  her  colors  and  did  heave  to  to  await  search 
as  soon  as  she  discovered  that  the  pursuing  vessel  was  a  French 
cruiser,  and  she  did  not  fire  her  solitary  shot  at  the  cruiser  until,  while 
awaiting  search,  the  cruiser  fired  into  her  with  cannon  and  musketry. 
In  a  word,  she  did  not  resist  search,  but  exercised  the  inalienable 
right  of  self-defense. 

The  indisputable  conditions  of  the  parties  render  this  clear,  and,  to 
my  mind,  also  indisputable.  The  Jane  was  a  little  schooner  which,  at 
the  present  day,  would  be  classed  as  a  small  coaster.  Her  length 
was  66  feet  5  inches,  her  breadth  19  feet  3  inches,  her  depth  8  feet  2 
inches;  she  measured  less  than  91  tons;  her  crew  could  not  have  con- 
sisted of  more  than  6  or  8  men,  and  the  total  value  of  her  cargo,  as 
per  manifest,  was  $6,074.31. 

The  Alliance  was  a  cruiser  carrying  12  guns,  with  a  crew  of  90  men. 
Relatively,  for  "she  soon  came  up  with"  the  Jane,  she  could  take  anv 
position   she  chose,   and  could   have  sailed   around   the  heavily  laden 


432  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

merchantman  and  raked  her  fore  and  aft.  To  suppose  that  against 
such  overw'helming  force  a  paltry  little  vessel  like  the  Jane  would 
heave  to,  lose  her  steerage  way,  and  then  resist  search  is  to  suppose 
that  her  master  and  crew  suddenly  went  mad. 

Probably  the  firing  of  the  shotted  gun  into  the  Jane  was  one  of 
those  casualties  which  are  classified  as  the  playing  with  edged  tools 
by  children.  The  blunder  of  a  gunner,  a  misunderstanding  of  some 
order,  a  spark  falling  from  a  heated  firing  iron,  may  have  caused 
the  shot.  But,  nevertheless,  it  was  a  shot  fired,  not  at  this  mer- 
chantman, but  on  the  American  flag;  and  such  shots  continued  until 
the  schooner  hauled  down  her  colors,  as  enemies  surrender  in  time 
of  war.  France  owed  an  explanation  of  the  act  to  the  United  States, 
but  that  was  a  matter  which  belonged  and  still  belongs  entirely  to  the 
diplomatic  realm. 

On  the  22d  June,  1807,  a  British  admiral  undertook  to  apply  the 
British  doctrine  of  the  right  of  search  to  an  American  man-of-war, 
and  out  of  it  came  what  has  been  known  as  the  affair  of  the  Chesa- 
peake and  the  Leopard.  The  Chesapeake  had  just  left  the  navy-yard 
at  Washington,  and  her  armament  was  found  to  be  in  a  disgraceful 
condition.  For  twenty  minutes  the  Leopard  fired  into  her  without 
her  being  able  to  return  a  single  shot.  As  her  flag  was  coming  down, 
one  of  her  officers,  Lieutenant  Allen,  seized  a  burning  ember  in  his 
ungloved  hand  and  fired  the  only  shot  fired  at  the  Leopard.  (2 
Cooper  Naval  History,  104.)  This  act  of  Lieutenant  Allen  was  sup- 
posed at  that  time  to  be  for  the  honor  of  his  flag;  that  it  should  not 
t>e  said  that  an  American  man-of-war  surrendered  without  firing  a 
shot. 

I  do  not  know  that  a  sense  of  honor  required  the  master  of  this 
little  schooner  to  fire  his  one  shot  before  he  hauled  down  his  flag, 
but  I  think  I  may  say  with  tolerable  certainty  that  no  case  can  be 
found  in  judicial  decisions,  or  in  elementary  writers,  or  in  diplomatic 
correspondence,  where  the  right  of  search,  even  as  defined  by  the 
two  great  maritime  nations  of  the  earth  in  the  eighteenth  century, 
is  held  to  be  or  is  claimed  to  be  a  doctrine  so  sacred  as  to  obliterate 
the  natural  right  of  self-defense. 

It  remains  to  be  noted  that  (as  appears  from  the  proceedings  be- 
fore the  French  prize  court)  the  captain  of  the  Alliance  made  no 
charge  of  resistance  to  search  by  his  prize;  that  the  tribunal  of  com- 
merce and  prizes  made  no  condemnation  upon  that  ground ;  that  the 


THE  SHIP  JAMES  AND  WILLIAM  433 

Jane  was  condemned  because  she  had  on  board  two  trunks  of  English 
ginghams  and  her  papers  did  not  conform  to  French  laws;  and  that 
it  was  not  so  much  as  heard  of  that  the  vessel  resisted  search  until, 
more  than  one  hundred  years  after  the  event,  the  counsel  for  the 
United  States  first  formulated  that  defense.  In  the  most  of  these 
French  spoliation  cases  the  illegality  of  the  condemnation  was  in  the 
fact  that  the  French  prize  courts  condemned  vessels  under  French  laws 
instead  of  releasing  them  under  international  law.  In  this  case  the  il- 
legality of  the  seizure  was  supplemented  by  an  outrage  upon  the  neu- 
tral flag  which  the  vessel  carried. 

I  regret  that  I  must  dissent  from  the  majority  of  the  court,  but  I 
can  not  regard  that  outrage  as  something  which  can  render  an  illegal 
condemnation  legal. 


The  Ship  JAMES  AND  WILLIAM^  [and  Other  Cases] 

[French  Spoliations,  1197,  1089,  3817.     Decided  March  3,  1902] 

On   the  Proofs 

The  James  and  William  sails  from  Norfolk  bound  for  London  in  January,  1798, 
laden  with  tar  and  turpentine.  She  is  captured  and  condemned  because 
the  treaty  1795  with  Great  Britain  declares  tar  and  turpentine  to  be  con- 
traband. 
I.  By  the  treaty  1778  with  France  it  was  declared  that  tar  and  turpentine 
"shall  not  be  reputed  contraband."  Until  the  abrogation  of  the  treaty  by 
the  Act  of  July  7,  1798'^  (1  Stat.  L.  578),  French  condemnations  on  the 
ground  that  tar  and  turpentine  were  contraband  were  illegal. 
II.  The  treaty  1795  with  Great  Britain  did  not  release  France  from  any  obliga- 
tion of  the  treaty  of  1778. 

III.  The  decree  of  the  French  Government  abrogating  so  much  of  the  treaty 

of  1778  as  related  to  contraband  goods  on  neutral  vessels  justified  its  own 
cruisers  in  seizing  and  its  own  courts  in  condemning  vessels,  but  did  not 
abrogate  any  treaty  right  of  the  United  States. 

IV.  The  "the  most-favored  nation"  clause  in  treaties  relates  to  duties  and  rights 

and  benefits  in  the  ports  of  the  parties.  Provisions  which  declare  what 
shall  be  regarded  as  contraband  or  non-contraband,  relate  to  the  procedure 
of  the  two  nations  in  time  of  war,  and  are  not  affected  by  a  treaty  of 
either  with  another  power. 
V.  Where  an  American  vessel  carried  the  passport  or  sea  letter  prescribed  by 
the  treaty  of  1778  (Art.  XXV)  it  was  a  case  where  free  ships  made  free 
goods  under  Art.  XXIII.  The  cargo  could  not  be  condemned  for  want  of 
evidence  of  its  neutrality. 

1  Court  of  Qaims  Reports,  vol.  37,  page  303.  ^  Supra,  p.  65. 


434  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

The  Reporters'  statement  of  the  case: 

The  following  are  the  facts  of  the  case  as  found  by  the  court : 

I.  The  James  and  William  sailed  from  Norfolk,  Va.,  on  the  26th  of 
January,  1798,  bound  for  London.  On  the  22d  of  February,  she  was 
captured  on  the  high  seas  by  the  French  privateer  President  Parker 
and  carried  into  the  port  of  Roscoff.  On  the  5th  of  March,  1798,  she 
was  condemned  by  the  French  tribunal  of  commerce  at  Morlaix.  The 
grounds  of  condemnation  set  forth  in  the  decree  were  that  the  tar 
and  turpentine  which  formed  the  chief  part  of  her  cargo  were  declared 
to  be  good  contraband  and  subject  to  seizure  by  the  treaty  between 
the  United  States  and  Great  Britain,  bearing  date  November  19,  1704, 
article  18,  and  that  the  ship's  papers  were  not  in  proper  form. 

But  it  likewise  appears  by  the  said  decree  that  there  was  on  board 
the  vessel  at  the  time  of  seizure  a  passport  from  the  President  of  the 
United  States  to  the  master  of  the  ship,  dated  the  20th  of  January, 
1798,  signed  "John  Adams,"  President,  by  Timothy  Pickering,  Secre- 
tary of  State,  such  as  was  provided  for  by  the  treaty  with  France, 
February  6,  1778  (Public  Treaties,  p.  203,  Art.  XXV),  and  likewise 
T.n  affidavit  made  by  the  master  of  the  ship,  showing  that  she  was  a 
vessel  of  the  United  States  and  that  no  citizen  or  subject  of  powers 
then  at  war  had  any  part  or  interest,  directly  or  indirectly,  therein. 

II.  The  James  and  William  was  a  duly  registered  vessel  of  the 
United  States ;  was  built  in  Virginia  in  1796,  of  209  tons  burden,  and 
was  owned  by  John  Proudfit  and  the  firm  of  David  Stewart  &  Sons, 
citizens  of  the  United  States. 

III.  The  cargo  of  the  James  and  William  consisted  of  1,878  barrels 
of  turpentine  and  96  barrels  of  tar,  the  property  of  John  Cowper  & 
Co.,  citizens  of  the  United  States,  and  of  a  case  of  deer  hides  and  17 
barrels  of  gentian,  for  which  no  claimant  has  appeared. 

IV.  The  losses  by  reason  of  the  capture  and  condemnation  of  the 
James  and  William  were  as  follows : 

The  value  of  the  vessel  was $  9,405.00 

The  freight  earnings  of  the  voyage  were 3,500.00 

The  value  of  the  cargo  belonging  to  Cowper  &  Co 5,922.00 

Amounting  in  all $18,827.00 

V.  The  loss  sustained  by  John  Cowper  &  Co.  was  $5,922.00. 

VI.  The  loss  sustained  by  John  Proudfit  was : 


THE  SHIP  JAMES  AND  WILLIAM  435 

One-half  the  value  of  the  vessel $4,702.50 

One-half  freight  earnings 1,750.00 

Amounting  to $6,452.50 

VII.  The  loss  sustained  by  the  firm  of  David  Stev^^art  &  Sons  was : 

One-half  the  value  of  the  vessel $4,702.50 

One-half  the  freight  earnings  of  voyage 1,750.00 

Amounting  to $6,452.50 

VIII.  The  said  firm  of  John  Cowper  &  Co.  was  composed  of  John 
Cowper,  Josiah  Cowper,  William  Cowper,  and  Robert  Cowper,  of 
which  John  Cowper  was  the  surviving  partner. 

The  firm  of  David  Stewart  &  Sons  was  composed  of  David  Stewart, 
John  Stewart,  David  C.  Stewart,  and  William  P.  Stewart,  of  which 
said  William  P.  Stewart  was  the  surviving  partner. 

The  claimants  herein  have  produced  letters  of  administration  for 
the  estates  of  the  parties  for  whom  they  appear  and  have  otherwise 
proved  to  the  satisfaction  of  the  court  that  they  are  the  same  persons 
who  suffered  loss  by  the  seizure  and  condemnation  of  the  James  and 
William,  as  set  forth  in  the  preceding  findings. 

Mr.  William  E.  Curtis  and  Mr.  Frank  P.  Clark  for  the  claimants. 
Mr.  Charles  W.  Russell  (with  whom  was  Mr.  Assistant  Attorney- 
General  Pradt)   for  the  defendants. 

NoTT,  Ch.  J.,  delivered  the  opinion  of  the  court: 

The  vessel  in  this  case  sailed  from  Norfolk  on  the  26th  of  January, 
1798,  bound  for  a  belligerent  port,  London,  laden  with  tar  and  tur- 
pentine. Tar  and  turpentine,  like  horses,  "belong  to  that  disputable 
class  of  merchandise  which  may  or  may  not  be  contraband,  according 
to  the  circumstances  of  a  case."    (Brig  Lucy,  37  C.  Cls.  97.) 

By  the  treaty  with  France,  1778  (Public  Treaties,  p.  210,  Art. 
XXIV),  horses  were  declared  to  be  contraband,  and  tar  and  turpen- 
tine, it  was  declared,  "shall  not  be  reputed  contraband."  Such  was 
the  law  between  France  and  the  United  States.  By  the  treaty  of  1794 
with  Great  Britain  (Public  Treaties,  p.  278,  Art.  XVIII),  this  policy 
was  in  part  reversed,  and  tar  and  turpentine  were  declared  to  be  con- 


436  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

traband  and  "just  subjects  of  confiscation  whenever  they  are  attempted 
to  be  carried  to  an  enemy." 

The  James  and  William  was  captured  in  February  and  condemned 
in  March,  1798,  on  the  ground  that  her  cargo  was  contraband ;  that 
is  to  say,  she  was  captured  before  the  abrogation  of  the  treaty  with 
France,  but  after  the  ratification  of  the  treaty  with  Great  Britain. 
According  to  the  terms  of  the  two  treaties,  if  an  American  vessel  at 
that  time,  laden  with  tar  and  turpentine,  was  sailing  for  a  French  port, 
a  British  prize  court  was  justified  in  condemning  the  cargo  as  con- 
traband. If  she  was  sailing  for  a  British  port,  a  French  prize  court 
was  bound,  according  to  the  letter  of  the  treaty,  to  pronounce  the 
cargo  non-contraband. 

Grounding  his  argument  upon  this  diversity,  the  counsel  for  the 
United  States  contends  that  the  treaty  with  Great  Britain  was,  in  this 
particular,  a  rescission  and  abandonment  of  the  treaty  with  France ;  or 
that  under  the  most- favored-nation  provision  of  the  treaty  (Art.  II) 
France  was  entitled  to  the  benefit  of  the  treaty  with  Great  Britain. 

The  counsel  for  the  claimants  contend  that  the  treaty  with  France 
was  still  in  force  and  that  this  provision  of  the  treaty  related  to  com- 
merce and  navigation,  and  not  to  any  matter  of  neutral  rights  in  time 
of  war. 

The  court  is  of  the  opinion  that  the  United  States  relinquished  no 
obligation  to  France  by  their  treaty  with  Great  Britain.  A  nation 
may  abrogate  a  treaty  as  it  may  make  a  treaty — on  its  own  motion, 
upon  its  own  responsibility.  There  is  no  international  forum  which 
can  decree  that  it  has  no  right  to  do  so.  What  follows  the  abrogation 
of  a  treaty  is  a  matter  between  the  two  nations.  It  may  be  followed 
by  an  interval  in  which  they  have  no  treaty  relations,  or  it  may  be 
followed  by  war.  But  a  nation  can  not  at  its  pleasure  abrogate  one 
article  of  a  treaty  and  leave  all  of  the  other  obligations  in  effect,  bind- 
ing the  other  power.  The  decree  of  the  French  Government  abro- 
gating so  much  of  the  treaty  of  1778  as  related  to  contraband  goods 
on  neutral  vessels  justified  its  own  cruisers  in  seizing  vessels  and  its 
own  prize  courts  in  condemning  them,  but  without  notice  to  and 
acquiescence  on  the  part  of  the  United  States  the  decree  could  not 
ex  proprio  rngore  extend  to  the  treaty  rights  of  the  United  States.  In 
July.  1798  (Act  of  Jiily  7,  1798,  1  Stat.  L.  578),  the  United  States 
abrogated  the  treaty  in  toto,  and  thereby  relieved  France  from  all 
obligations  under  it.     This  court  in  these  spoliation  cases  has  always 


THE  SHIP  JAMES  AND  WILLIAM  437 

recognized  that  release  from  treaty  obligation,  and  has  given  to  France 
the  full  benefits,  whatever  they  may  have  been,  of  such  exemption. 

The  most-favored-nation  clause  of  the  treaty  of  1778  is  in  these 
words : 

The  Most  Christian  King  and  the  United  States  engage  mu- 
tually not  to  grant  any  particular  favor  to  other  nations  in  respect 
of  commerce  and  navigation  which  shall  not  immediately  become 
common  to  the  other  party,  who  shall  enjoy  the  same  favor, 
freely,  if  the  concession  was  freely  made,  or  on  allowing  the  same 
compensation  if  the  concession  was  conditional. 

It  is  well  known  that  such  provisions  in  a  treaty  relate  to  duties, 
rights,  and  benefits  in  the  ports  of  either  ally,  and  it  has  been  so  said 
of  this  provision  in  the  treaty  of  1778.  (Wharton's  Int.  Law,  vol.  II, 
sec.  148.)  The  other  provisions  of  this  treaty  (Art,  XXIII)  related 
strictly  to  the  procedure  between  the  two  nations  in  time  of  war.  What 
they  agreed  should  be  the  rule  between  themselves  concerning  goods 
which  might  or  might  not  be  contraband  concerned  only  themselves. 
No  other  nation  was  benefited  or  injured  by  their  entering  into  that 
treaty  obligation.  Conversely,  the  rule  which  the  United  States  might 
establish  in  conjunction  with  any  other  power  did  not  concern  France. 
The  definition  of  what  should  be  regarded  as  contraband  or  not  con- 
traband was  not  a  favor,  but  a  mutual  and  reciprocal  obligation.  It 
worked  both  ways.  If  the  case  had  been  reversed,  and  the  United 
States  had  been  the  belligerent  and  France  the  neutral,  the  exemption 
would  have  operated  against  the  United  States.  If  American  cruisers 
in  these  reversed  conditions  had  seized  French  merchantmen,  because 
France  had  made  a  different  treaty  with  another  power,  it  can  not 
be  supposed  that  France  would  have  submitted  to  such  seizures  and 
condemnations. 

It  is  also  contended  by  the  defendant's  counsel  that  so  much  of  the 
cargo  as  belonged  to  Cowper  &  Co.,  of  Norfolk,  Va.,  was  liable  to  con- 
demnation, because  it  did  not  appear  by  the  ship's  papers  that  it  was 
neutral  property.  There  was,  indeed,  an  invoice  on  board  averring  it 
to  be  such,  but  the  invoice  was  not  signed.  Without  passing  upon 
the  question  whether  such  an  invoice  should  have  been  regarded  as 
evidence  by  the  prize  court  of  the  neutrality  of  the  cargo — that  is  to 
say,  that  it  was  the  property  of  Cowper  &  Co.,  citizens  of  the  United 
States,  doing  business  in  Norfolk,  Va. — the  court  is  of  the  opinion 


438  JUDGMENTS  OF  THE  COURT  OF  CLAIMS 

that  the  cargo  was  illegally  condemned  under  other  provisions  of  the 
treaty  of  1778. 

It  appears  that  the  vessel  carried  a  passport  or  sea  letter  from  the 
President  of  the  United  States,  such  as  was  provided  for  by  the  treaty, 
"to  the  end  that  all  manner  of  dissensions  and  quarrels  may  be  avoided 
and  prevented  on  one  side  and  the  other."  (Art.  XXV.)  The  last 
clause  of  the  article  is  in  these  words : 

And  if  anyone  shall  think  it  fit  or  advisable  to  express  in  the 
said  certificate  the  person  to  whom  the  goods  on  board  belong, 
he  may  freely  do  so. 

A  previous  article  (XXIII)  declares  that  free  ships  make  free 
goods,  and  that  it  shall  be  lawful  for  citizens,  people,  and  inhabitants 
of  the  said  United  States  to  sail  with  their  ships  with  all  manner  of 
liberty  and  security,  "no  distinction  being  made  who  are  the  proprietors 
of  the  merchandises  laden  thereon,  from  any  port  to  the  places  of 
those  who  now  are  or  hereafter  shall  be  at  enmity  with  the  Most 
Christian  King."     It  also  provides: 

And  it  is  hereby  stipulated  that  free  ships  shall  also  give  a 
freedom  to  goods,  and  that  everything  shall  be  deemed  to  be  free 
and  exempt  which  shall  be  found  on  board  the  ships  belonging 
to  the  subject  of  either  of  the  confederates,  although  the  whole 
lading  or  any  part  thereof  should  appertain  to  the  enemies  of 
either,  contraband  goods  being  always  excepted.  It  is  also  agreed 
in  like  manner  that  the  same  liberty  be  extended  to  persons  who 
are  on  board  a  free  ship,  with  this  effect,  that  although  they  be 
enemies  to  both  or  either  party,  they  are  not  to  be  taken  out  of 
that  free  ship,  unless  they  are  soldiers  and  in  actual  service  of  the 
enemies. 

These  provisions  taken  together  clearly  exempted  the  shipper  and 
the  ship  from  carrying  evidence  of  neutrality  or  ownership  of  the 
cargo.  The  unquestionable  intent  of  the  treaty  was  to  reduce  the 
dangerous  power  of  the  right  of  search  to  a  minimum,  excepting  only 
from  its  liberal  provisions  contraband  goods. 

The  case  will  be  reported  to  Congress,  together  with  a  copy  of  this 
opinion. 


APPENDIX 


TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


Treaty  of  Amity  and  Commerce,  February  6,  1778^ 

Concluded  February  6,    i/^S;  Ratified  by   the  Continental  Congress 
May  4,  1778 ;  Ratifications  exchanged  at  Paris  July  17,  1778 


The  Most  Christian  King,  and 
the  thirteen  United  States  of 
North  America,  to  wit,  New 
Hampshire,  Massachusetts  Bay, 
Rhode  Island,  Connecticut,  New 
York,  New  Jersey,  Pennsylvania, 
Delaware,  Maryland,  Virginia, 
North  Carolina,  South  Carolina, 
and  Georgia,  willing  to  fix  in  an 
equitable  and  permanent  manner 
the  rules  which  ought  to  be  fol- 
lowed relative  to  the  correspon- 
dence and  commerce  which  the 
two  parties  desire  to  establish  be- 
tween their  respective  countries. 
States,  and  subjects.  His  Most 
Christian  Majesty  and  the  said 
United  States  have  judged  that 
the  said  end  could  not  be  better 
obtained  than  by  taking  for  the 
basis  of  their  agreement  the  most 
perfect  equality  and  reciprocity, 
and  by  carefully  avoiding  all 
those  burthensome  preferences 
which  are  usually  sources  of  de- 
bate, embarrassment  and  discon- 
tent ;  by  leaving,  also,  each  party 


Le  Roi  tres  Chretien  et  les 
treize  Etats  Unis  de  I'Amerique 
Septentrionale,  savoir.  New 
Hampshire,  la  Baye  de  Massa- 
chusset,  Rhode  Island,  Connecti- 
cut, New  York,  New  Jersey, 
Pensylvanie,  les  comtes  de  New- 
castle, de  Kent  et  de  Sussex  sur 
la  Delaware,  Maryland,  Virginie, 
Caroline,  Septentrionale,  Caroline 
Meridionale,  et  Georgie,  voulant 
etablir  d'une  maniere  equitable  et 
permanente  les  regies  qui  devront 
etre  suivies  relativement  a  la 
correspondance  et  au  commerce 
que  les  deux  parties  desirent 
d'etablir  entre  leurs  Pais  Etats  et 
sujets  respectifs,  sa  Majeste  tresf 
Chretienne  et  les  dits  Etats  Unis 
ont  juge  ne  pouvoir  mieux  attein- 
dre  a  ce  but  qu'en  prenant  pour 
base  de  leur  arrangement  I'egalite 
et  la  reciprocite  la  plus  parfaite, 
et  en  observant  d'eviter  toutes  les 
preferences  onereuses,  source  de 
discussions,  d'embarras,  et  de  me- 
contentemens,  de  laisser  a  chaque 


18  Stat.  L.   12;   18   Stat.  L.,  pt.  2,   p.  203;   Treaties  and   Conventions,    1889, 
p.  296. 


442     TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


at  liberty  to  make,  respecting  com- 
merce and  navigation,  those  inte- 
rior regulations  which  it  shall  find 
most  convenient  to  itself ;  and  by 
founding  the  advantage  of  com- 
merce solely  upon  reciprocal  util- 
ity and  the  just  rules  of  free  in- 
tercourse ;  reserving  withal  to 
each  party  the  liberty  of  admit- 
ting at  its  pleasure  other  nations 
to  a  participation  of  the  same  ad- 
vantages. It  is  in  the  spirit  of 
this  intention,  and  to  fulfil  these 
views,  that  His  said  Majesty  hav- 
ing named  and  appointed  for  his 
Plenipotentiary,  Conrad  Alexan- 
der Gerard,  Royal  Syndic  of  the 
city  of  Strasbourg,  Secretary  of 
His  Majesty's  Council  of  State ; 
and  the  United  States,  on  their 
part,  having  fully  impowered  Ben- 
jamin Franklin,  Deputy  from  the 
State  of  Pennsylvania  to  the  Gen- 
eral Congress,  and  President  of 
the  Convention  of  said  State, 
Silas  Deane,  late  Deputy  from  the 
State  of  Connecticut,  to  the  said 
Congress,  and  Arthur  Lee,  Coun- 
cellor  at  Law ;  the  said  respective 
Plenipotentiaries,  after  exchang- 
ing their  powers,  and  after  ma- 
ture deliberation,  have  concluded 
and  agreed  upon  the  following 
articles : 

Article  I 


partie  la  liberte  de  faire,  relative- 
ment  au  commerce  et  a  la  naviga- 
tion des  reglemens  interieurs  qui 
seront  a  sa  convenance,  de  ne  fon- 
der les  avantages  du  commerce 
que  sur  son  utilite  reciproque  et 
sur  les  loix  d'une  juste  concur- 
rence, et  de  conserver  ainsi  de 
part  et  d'autre  la  liberte  de  faire 
participer,  chacun  selon  son  gre, 
les  autres  nations,  aux  memes 
avantages.  C'est  dans  cet  esprit 
et  pour  remplir  ces  viies  que  sa 
d®.  Majeste  ayant  nomme  et  cons- 
titue  pour  son  plenipotentiaire  le 
S.  Conrad  Alexandre  Gerard, 
Sindic  Ro'ial  de  la  ville  de  Stras- 
bourg, Secretaire  du  Conseil 
d'Etat  de  sa  Majeste,  et  les  Etats 
Unis  aiant,  de  leur  cote,  munis  de 
leurs  pleins  pouvoirs  les  S.  Ben- 
jamin Franklin,  Depute  au  Con- 
gres  General  de  la  part  de  I'Etat 
de  Pensylvanie,  et  President  de  la 
Convention  du  d®.  Etat,  Silas 
Deane  ci-devant  Depute  de  I'Etat 
de  Connecticut,  et  Arthur  Lee, 
Conseiller  es  Loix,  les  d*.  pleni- 
potentiaires  respectifs  apres 
I'echange  de  leurs  pouvoirs  et 
apres  mure  deliberation  ont  con- 
clu  et  arrete  les  points  et  articles 
suivans. 

'   Article  I 


There  shall  be  a  firm,  inviolable  II  y  aura  une  paix   ferme,  in- 

and  universal  peace,  and  a   true      violable  et  universelle  et  une  ami- 
and    sincere    friendship    between     tie  vraie  et  sincere  entre  Le  Roi 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


443 


the  Most  Qiristian  King,  his  heirs 
and  successors,  and  the  United 
States  of  America ;  and  the  sub- 
jects of  the  Most  Christian  King 
and  of  the  said  States ;  and  be- 
tween the  countries,  islands,  cities 
and  towns  situate  under  the  juris- 
diction of  the  Most  Christian 
King  and  of  the  said  United 
States,  and  the  people  and  inhab- 
itants of  every  degree,  without 
exception  of  persons  or  places ; 
and  the  terms  hereinafter  men- 
tioned shall  be  perpetual  between 
the  Most  Christian  King,  his  heirs 
and  successors,  and  the  said 
United  States. 


tres  Chretien  ses  heritiers  et  suc- 
cesseurs,  et  entre  les  Etats  Unis 
de  I'Amerique  ainsi  qu'entre  les 
sujets  de  sa  Majeste  tres  Chre- 
tienne  et  ceux  des  dits  Etats, 
comme  aussi  entre  les  peuples, 
isles,  villes  et  places  situes  sous  la 
jurisdiction  du  Roi  tres  Chretien 
et  des  dits  Etats  Unis,  et  entre 
leurs  peuples  et  habitans  de  toutes 
les  classes,  sans  aucune  exception 
de  personnes  et  de  lieux ;  les  con- 
ditions mentionnees  au  present 
traite  seront  perpetuelles  et  per- 
manentes  entre  Le  Roi  tres  Chre- 
tien, ses  heritiers  et  successeurs, 
et  les  dits  Etats  Unis. 


Article  II 

The  Most  Christian  King  and 
the  United  States  engage  mutu- 
ally not  to  grant  any  particular 
favour  to  other  nations,  in  respect 
of  commerce  and  navigation, 
which  shall  not  immediately  be- 
come common  to  the  other  party, 
who  shall  enjoy  the  same  favour, 
freely,  if  the  concession  was  free- 
ly made,  or  on  allowing  the  same 
compensation,  if  the  concession 
was  conditional. 


Article  II 

Le  Roi  tres  Chretien  et  les  Etats 
Unis  s'engagent  mutuellement  a 
n'accorder  aucune  faveur  particu- 
liere  a  d'autres  nations,  en  fait  de 
commerce  et  de  navigation,  qui 
ne  devienne  ausitot  commune  a 
I'autre  partie,  et  celle-ci  jouira  de 
cette  faveur  gratuitement,  si  la 
concession  est  gratuite,  ou  en  ac- 
cordant la  meme  compensation,  si 
la  concession  est  conditionnelle. 


Article  III 

The  subjects  of  the  Most  Chris- 
tian King  shall  pay  in  the  ports, 
havens,  roads,  countries,  islands, 
cities,    or   towns,    of    the    United 


Article  III 

Les  sujets  du  Roi  tres  Chretien 
ne  paieront  dans  les  ports,  havres. 
rades,  contrees,  isles,  cites  et  lieux 
des  Etats  Unis  ou  d'aucun  d'en- 


States,  or  any  of  them,  no  other     trieux,    d'autres    ni    plus    grands 


444     TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


or  greater  duties  or  imposts,  of 
what  nature  soever  they  may  be, 
or  by  what  name  soever  called, 
than  those  which  the  nations  most 
favoured  are  or  shall  be  obliged 
to  pay;  and  they  shall  enjoy  all 
the  rights,  liberties,  privileges,  im- 
munities, and  exemptions  in  trade, 
navigation  and  commerce,  whether 
in  passing  from  one  port  in  the 
said  States  to  another,  or  in  going 
to  and  from  the  same,  from  and 
to  any  part  of  the  world,  which 
the  said  nations  do  or  shall  enjoy. 


droits  ou  impots,  de  quelque  na- 
ture qu'ils  puissent  etre,  et  quel- 
que nom  qu'ils  puissent  avoir  que 
ceux  que  les  nations  les  plus  fa- 
vorisees  sont,  ou  seront  teniies  de 
pa'ier;  Et  ils  jouiront  de  tous  les 
droits,  libertes,  privileges,  immu- 
nites  et  exemtions  en  fait  de  ne- 
goce,  navigation  et  commerce,  soit 
en  passant  d'un  port  des  dits 
Etats  a  un  autre ;  soit  en  y  allant 
ou  en  revenant  de  quelque  partie 
ou  pour  quelque  partie  du  monde 
que  ce  soit,  dont  les  d*.  nations 
jouissent  ou  jouiront. 


Article  IV 

The  subjects,  people  and  in- 
habitants of  the  said  United 
States,  and  each  of  them,  shall 
not  pay  in  the  ports,  havens, 
roads,  isles,  cities  and  places  un- 
der the  domination  of  His  Most 
Christian  Majesty,  in  Europe,  any 
other  or  greater  duties  or  imposts, 
of  what  nature  soever  they  may 
be,  or  by  what  name  soever  called, 
than  those  which  the  most  fa- 
voured nations  are  or  shall  be 
obliged  to  pay ;  and  they  shall  en- 
joy all  the  rights,  liberties,  privi- 
leges, immunities,  and  exemptions 
in  trade,  navigation  and  com- 
merce, whether  in  passing  from 
one  port  in  the  said  dominions,  in 
Europe,  to  another,  or  in  going  to 
and  from  the  same,  from  and  to 
any  part  of  the  world,  which  the 
said  nations  do  or  shall  enjoy. 


Article  IV 

Les  sujets,  peuples  et  habitans 
des  d*'.  Etats  Unis  et  de  chacun 
d'iceux  ne  paieront  dans  les  ports, 
havres,  rades,  isles,  villes  et  places 
de  la  domination  de  sa  Majeste 
tres  Chretienne  en  Europe  d'au- 
tres  ni  plus  grands  droits  ou  im- 
pots de  quelque  nature  qu'ils  puis- 
sent etre  et  quelque  nom  qu'ils 
puissent  avoir  que  les  nations  les 
plus  favorisees  sont,  ou  seront 
teniies  de  pa'ier,  et  ils  jouiront  de 
tous  les  droits,  libertes,  privileges, 
immunites  et  exemtions  en  fait  de 
negoce,  navigation  et  commerce 
soit  en  passant  d'un  port  a  un 
autre  des  dits  Etats  du  Roi  tres 
Chretien  en  Europe,  soit  en  y 
allant  ou  en  revenant  de  quelque 
partie  ou  pour  quelque  partie  du 
monde  que  ce  soit,  dont  les  na- 
tions sus  d®.  jouissent  ou  jouiront. 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


445 


Article  V 

In  the  above  exemption  is  par- 
ticularly comprised  the  imposi- 
tion of  100  sols  per  ton,  estab- 
lished in  France  on  foreign  ships ; 
unless  when  the  ships  of  the 
United  States  shall  load  with  the 
merchandize  of  France  for  an- 
other port  of  the  same  dominion, 
in  which  case  the  said  ships  shall 
pay  the  duty  above-mentioned  so 
long  as  other  nations  the  most 
favoured  shall  be  obliged  to  pay 
it.  But  it  is  understood  that  the 
said  United  States,  or  any  of 
them,  are  at  liberty,  when  they 
shall  judge  it  proper,  to  establish 
a  duty  equivalent  in  the  same 
case. 


Article  V 

Dans  I'exemtion  ci-dessus  est 
nommement  compris  I'imposition 
de  cent  sous  par  tonneau  etablie 
en  France  sur  les  navires  etran- 
gers,  si  ce  n'est  lorsque  les  navires 
des  Etats  Unis  chargeront  des 
marchandises  de  France,  dans  un 
port  de  France,  pour  un  autre  port 
de  la  meme  domination,  auquel 
cas  les  d®.  navires  des  d®.  Etats 
Unis  acquiteront  le  droit  dont  il 
s'agit  aussi  long  tems  que  les  au- 
tres  nations  les  plus  favorisees  se- 
ront  obligees  de  I'acquiter.  Bien 
entendu  qu'il  sera  libre  aux  dits 
Etats  Unis,  ou  a  aucun  d'iceux 
d'etablir.  quand  ils  le  jugeront 
apropos,  un  droit  equivalent  a 
celui  dont  il  est  question  pour  le 
meme  cas  pour  lequel  il  est  etabli 
dans  les  ports  de  sa  Majeste  tres 
Chretienne. 


Article  VI 

The  Most  Christian  King  shall 
endeavour  by  all  the  means  in  his 
power  to  protect  and  defend  all 
vessels  and  the  effects  belonging 
to  the  subjects,  people  or  inhabi- 
tants of  the  said  United  States,  or 
any  of  them,  being  in  his  ports, 
havens,  or  roads,  or  on  the  seas 
near  to  his  countries,  islands, 
cities  or  towns,  and  to  recover 
and  restore  to  the  right  owners, 
their  agent  or  attornies,  all  such 
vessels  and  effects  which  shall  be 


Article  VI 

Le  Roi  tres  Chretien  fera  usage 
de  tous  les  moiens  qui  sont  en  son 
pouvoir,  pour  proteger  et  defen- 
dre  tous  les  vaisseaux  et  effets 
apartenants,  aux  sujets,  peuples 
et  habitans  des  dits  Etats  Unis 
et  de  chacun  d'iceux  qui  seront 
dans  ses  ports,  havres,  ou  rades, 
ou  dans  les  mers  pres  de  ses  pays, 
contrees,  isles,  villes  et  places,  et 
fera  tous  ses  efforts  pour  re- 
couvrer  et  faire  restituer  aux  pro- 
prietaires  legitimes,  leurs  agens  ou 


446   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


taken  within  his  jurisdiction;  and 
the  ships  of  war  of  His  Most 
Christian  Majesty,  or  any  convoy 
saiHng  under  his  authority,  shall 
upon  all  occasions  take  under 
their  protection  all  vessels  belong- 
ing to  the  subjects,  people  or  in- 
habitants of  the  said  United 
States,  or  any  of  them,  and  hold- 
ing the  same  course,  or  going  the 
same  way,  and  shall  defend  such 
vessels,  as  long  as  they  hold  the 
same  course  or  go  the  same  way, 
against  all  attacks,  force  and  vio- 
lence, in  the  same  manner  as  they 
ought  to  protect  and  defend  the 
vessels  belonging  to  the  subjects 
of  the  Most  Christian  King. 


mandataires,  tons  les  vaisseaux  et 
effets  qui  leur  seront  pris  dans 
I'etendue  de  sa  jurisdiction :  Et 
les  vaisseaux  de  guerre  de  sa 
Majeste  tres  Chretienne  ou  les 
convois  quelconques  faisant  voile 
sous  son  autorite,  prendront,  en 
toute  occasion,  sous  leur  protec- 
tion tous  les  vaisseaux  apartenants 
aux  sujets,  peuples  et  habitans  des 
d®.  Etats  Unis  ou  d'aucun  d'iceux, 
les  quels  tiendront  le  meme  cours, 
et  feront  la  meme  route,  et  ils  de- 
fendront  les  dits  vaisseaux  aussi 
longtems  qu'ils  tiendront  le  meme 
cours  et  suivront  la  meme  route, 
contre  toute  attaque  force  ou  vio- 
lence de  la  meme  maniere  qu'ils 
sont  tenus  de  defendre  et  de  pro- 
teger  les  vaisseaux  appartenans 
aux  sujets  de  sa  Majeste  tres 
Chretienne. 


Article  VII 

In  like  manner  the  said  United 
States  and  their  ships  of  war,  sail- 
ing under  their  authority,  shall 
protect  and  defend,  conformable 
to  the  tenor  of  the  preceding  arti- 
cle, all  the  vessels  and  effects  be- 
longing to  the  subjects  of  the 
Most  Christian  King,  and  use  all 
their  endeavours  to  recover  and 
cause  to  be  restored  the  said  ves- 
sels and  effects  that  shall  have 
been  taken  within  the  jurisdiction 
of  the  said  United  States,  or  any 
of  them. 


Article  VII 

Pareillement  les  dits  Etats  Unis 
et  leurs  vaisseaux  de  guerre 
faisant  voile  sous  leur  autorite 
protegeront  et  defendront  con- 
formement  au  contenu  de  I'art®. 
precedent,  tous  les  vaisseaux  et 
effets  apartenants  aux  sujets  du 
Roi  tres  Chretien,  et  feront  tous 
leurs  efforts  pour  recouvrer  et 
faire  restitiier  les  dits  vaisseaux 
et  effets  qui  auront  ete  pris  dans 
I'etendiie  de  la  jurisdiction  des 
dits  Etats  et  de  chacun  d'iceux. 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


447 


Article  VIII 

The  Most  Christian  King  will 
employ  his  good  offices  and  inter- 
position with  the  King  or  Em- 
peror of  Morocco  or  Fez,  the  re- 
gencies of  Algier,  Tunis,  and 
Tripoli,  or  with  any  of  them ;  and 
also  with  every  other  Prince, 
State  or  Power,  of  the  coast  of 
Barbary,  in  Africa,  and  the  sub- 
jects of  the  said  King,  Emperor, 
States  and  Powers,  and  each  of 
them,  in  order  to  provide  as  fully 
and  efficaciously  as  possible  for 
the  benefit,  conveniency  and  safe- 
ty of  the  said  United  States,  and 
each  of  them,  their  subjects,  peo- 
ple and  inhabitants,  and  their  ves- 
sels and  eflfects  against  all  vio- 
lence, insult,  attacks,  or  depreda- 
tions on  the  part  of  the  said 
Princes  and  States  of  Barbary.  or 
their  subjects. 


Article  VIII 

Le  Roi  tres  Chretien  emploiera 
ses  bons  offices  et  son  entremise 
aupres  des  Roi  ou  Empereur  de 
Maroc  ou  Fez,  des  Regences 
d' Alger,  Tunis  et  Tripoli,  ou  au- 
pres aucune  d'entr'elles  ainsi  qu'- 
aupres  de  tout  autre  Prince, 
Etat,  ou  Puissance  des  cotes  de 
Barbaric  en  Affrique  et  des  sujets 
des  d®.  Roi,  Empereur,  Etats  et 
Puissance  et  de  chacun  d'iceux  a 
Teflfet  de  pourvoir  aussi  pleine- 
ment  et  aussi  efficacement  qu'il 
sera  possible  a  I'avantage  com- 
modity et  sOirete  des  dits  Etats 
Unis  et  de  chacun  d'iceux,  ainsi 
que  de  leurs  sujets,  peuples  et 
habitans  leurs  vaisseaux  et  eflFets 
contre  toute  violence,  insulte,  at- 
taque  ou  depredations  de  la  part 
des  &".  Princes  et  Etats  Barba- 
resques  ou  de  leurs  sujets. 


Article  IX 

The  subjects,  inhabitants,  mer- 
chants, commanders  of  ships, 
masters  and  mariners  of  the 
States,  provinces  and  dominions 
of  each  party  respectively  shall 
abstain  and  forbear  to  fish  in  all 
places  possessed  or  which  shall  be 
possessed  by  the  other  party ;  the 
Most  Christian  King's  subjects 
shall  not  fish  in  the  havens,  bays, 
creeks,  roads,  coasts  or  places 
which  the  said  United  States  hold 
or   shall   hereafter   hold ;   and   in 


Article  IX 

Les  sujets,  habitans,  mar- 
chands,  commandans  des  navires, 
maitres  et  gens  de  mer,  des  etats, 
provinces  et  domaines  des  deux 
parties,  s'abstiendront  et  eviteront 
reciproquement  de  pecher  dans 
toutes  les  places  possedees,  ou  qui 
seront  possedees  par  I'autre  par- 
tie.  Les  sujets  de  sa  Majeste 
tres  Chretienne  ne  pecheront  pas 
dans  les  havres,  bayes,  criques, 
rades.  cotes  et  places  que  les  dits 
Etats  Unis,  possedent  ou  possede- 


448    TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


like  manner  the  subjects,  people 
and  inhabitants  of  the  said  United 
States  shall  not  fish  in  the  havens, 
bays,  creeks,  roads,  coasts  or 
places  which  the  Most  Christian 
King  possesses  or  shall  hereafter 
possess ;  and  if  any  ship  or  vessel 
shall  be  found  fishing  contrary  to 
the  tenor  of  this  treaty,  the  said 
ship  or  vessel,  with  its  lading, 
proof  being  made  thereof,  shall 
be  confiscated.  It  is,  however, 
understood  that  the  exclusion 
stipulated  in  the  present  article 
shall  take  place  only  so  long  and 
so  far  as  the  Most  Christian  King 
or  the  United  States  shall  not  in 
this  respect  have  granted  an  ex- 
emption to  some  other  nation. 

Article  X 

The  United  States,  their  citi- 
zens and  inhabitants,  shall  never 
disturb  the  subjects  of  the  Most 
Christian  King  in  the  enjoyment 
and  exercise  of  the  right  of  fish- 
ing on  the  banks  of  Newfound- 
land, nor  in  the  indefinite  and  ex- 
clusive right  which  belongs  to 
them  on  that  part  of  the  coast  of 
that  island  which  is  designed  by 
the  treaty  of  Utrecht ;  nor  in  the 
rights  relative  to  all  and  each  of 
the  isles  which  belong  to  His 
Most  Christian  Majesty;  the 
whole  conformable  to  the  true 
sense  of  the  treaties  of  Utrecht 
and   Paris. 


ront  a  I'avenir ;  et  de  la  meme 
maniere  les  sujets,  peuples  et  ha- 
bitans  des  d®.  Etats  Unis  ne  peche- 
ront  pas  dans  les  havres,  bayes, 
criques,  rades,  cotes  et  places  que 
sa  Majeste  tres  Chretienne  pos- 
sede  actuellement  ou  possedera  a 
Favenir,  et  si  quelque  navire  ou 
batiment  etoit  surpris  pechant  en 
violation  du  present  traite,  le  dit 
navire  ou  batiment  et  sa  cargaison 
seront  confisques  apres  que  la 
preuve  en  aura  ete  faite  diiement. 
Bien  entendu  que  I'exclusion  sti- 
pulee  dans  le  present  article  n'aura 
lieu  qu'autant,  et  si  longtems  que 
le  Roi  et  les  Etats  Unis  n'auront 
point  accorde  a  cet  egard  d'excep- 
tion  a  quelque  nation  que  ce  puisse 
etre. 

Article  X 

Les  Etats  Unis,  leurs  citoiens 
et  habitans  ne  troubleront  jamais 
les  sujets  du  Roi  tres  Chretien 
dans  la  jouissance  et  exercice  du 
droit  de  peche  sur  les  bancs  de 
Terre  neuve,  non  plus  que  dans  la 
jouissance  indefinie  et  exclusive 
qui  leur  apartient  sur  la  partie  des 
cotes  de  cette  isle,  designee  dans 
le  traite  d'Utrecht,  ni  dans  les 
droits  relatifs  a  toutes  et  chacune 
des  isles  qui  appartiennent  a  sa 
Majeste  tres  Chretienne ;  le  tout 
conformement  au  veritable  sens 
des  traites  d'Utrecht  et  de  Paris. 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


449 


Article  XI 

The  subjects  and  inhabitants  of 
the  said  United  States,  or  any  one 
of  them,  shall  not  be  reputed 
aubains  in  France,  and  conse- 
quently shall  be  exempted  from 
the  droit  d'auhaine,  or  other  sim- 
ilar duty,  under  what  name  so- 
ever. They  may  by  testament, 
donation,  or  otherwise,  dispose  of 
their  goods,  moveable  and  im- 
moveable, in  favour  of  such  per- 
sons as  to  them  shall  seem  good, 
and  their  heirs,  subjects  of  the 
said  United  States,  residing 
whether  in  France  or  elsewhere, 
may  succeed  them  ah  intestat, 
without  being  obliged  to  obtain 
letters  of  naturalization,  and  with- 
out having  the  effect  of  this  con- 
cession contested  or  impeded 
under  pretext  of  any  rights  or 
prerogative  of  provinces,  cities,  or 
private  persons ;  and  the  said 
heirs,  whether  such  by  particular 
title,  or  ah  intestat,  shall  be  ex- 
empt from  all  duty  called  droit 
de  detraction,  or  other  duty  of  the 
same  kind,  saving  nevertheless  the 
local  rights  or  duties  as  much  and 
as  long  as  similar  ones  are  not 
established  by  the  United  States, 
or  any  of  them.  The  subjects  of 
the  Most  Christian  King  shall  en- 
joy on  their  part,  in  all  the  do- 
minions of  the  said  States,  an 
entire  and  perfect  reciprocity  rela- 
tive to  the  stipulations  contained  in 
the  present  article,  but  it  is  at  the 


Article  XI 

Les  sujets  et  habitans  des  dits 
Etats  Unis  ou  de  I'un  d'eux  ne  se- 
ront  point  reputes  aubains  en 
France,  et  consequemment  seront 
exemts  du  droit  d'aubaine  ou 
autre  droit  semblable  quelque  nom 
qu'il  puisse  avoir;  pourront  dis- 
poser par  testament,  donation,  ou 
autrement  de  leurs  biens  meubles 
et  immeubles  en  faveur  de  telles 
personnes  que  bon  leur  semblera ; 
et  leurs  heritiers,  sujets  des  dits 
Etats  Unis,  residans  soit  en 
France  soit  ailleurs,  pourront  leur 
succeder  ah  intestat,  sans  qu'ils 
aient  besoin  d'obtenir  des  lettres 
de  naturalite,  et  sans  que  I'effet 
de  cette  concession  leur  puisse 
etre  conteste  ou  empeche  sous  pre- 
texte  de  quelques  droits  ou  prero- 
gatives des  provinces  villes  ou 
personnes  privees.  Et  seront  les 
dits  heritiers  soit  a  titre  particulier 
soit  ah  intestat  exemts  de  tout 
droit  de  detraction  ou  autre  droit 
de  ce  genre;  sauf  neanmoins  les 
droits  locaux  tant,  et  si  longtems, 
qu'il  n'en  sera  point  etabli  de 
pareils  par  les  dits  Etats  Unis  ou 
aucun  d'iceux.  Les  sujets  du  Roi 
tres  Chretien  jouiront  de  leur  cote 
dans  tous  les  domaines  des  dits 
Etats  d'une  entiere  et  parfaite 
reciprocite  relativement  aux  stipu- 
lations renfermees  dans  le  present 
article.  Mais  il  est  convenu  en 
meme  tems  que  son  contenu  ne 
portera  aucune  atteinte  aux  loix 


450   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


same  time  agreed  that  its  contents 
shall  not  affect  the  laws  made,  or 
that  may  be  made  hereafter  in 
France  against  emigrations  which 
shall  remain  in  all  their  force  and 
vigour,  and  the  United  States  on 
their  part,  or  any  of  them,  shall 
be  at  liberty  to  enact  such  laws 
relative  to  that  matter  as  to  them 
shall  seem  proper. 


promulguees  en  France  contre  les 
emigrations,  ou  qui  pourront  etre 
promulguees  dans  la  suite,  les 
quelles  demeureront  dans  toute 
leur  force  et  vigueur.  Les  Etats 
Unis  de  leur  cote  ou  aucun  d'en- 
tr'eux,  seront  libres  de  statiier  sur 
cette  matiere  telle  loi  qu'ils  juge- 
ront  apropos. 


Article  XII 

The  merchant  ships  of  either  of 
the  parties  which  shall  be  making 
into  a  port  belonging  to  the  ene- 
my of  the  other  ally,  and  con- 
cerning whose  voyage  and  the 
species  of  goods  on  board  her 
there  shall  be  just  grounds  of 
suspicion,  shall  be  obliged  to  ex- 
hibit, as  well  upon  the  high  seas 
as  in  the  ports  and  havens,  not 
only  her  passports,  but  likewise 
certificates,  expressly  shewing 
that  her  goods  are  not  of  the 
number  of  those  which  have  been 
prohibited  as  contraband. 

Article  XIII 

If  by  the  exhibiting  of  the 
abovesaid  certificates  the  other 
party  discover  there  are  any  of 
those  sorts  of  goods  which  are 
prohibited  and  declared  contra- 
band and  consigned  for  a  port 
under  the  obedience  of  his  ene- 
mies, it  shall  not  be  lawful  to 
break  up  the  hatches  of  such  ship. 


Article  XII 

Les  navires  marchands  des 
deux  parties  qui  seront  destines 
pour  des  ports  appartenants  a  une 
puissance  ennemie  de  I'autre  allie 
et  dont  le  voi'age  ou  la  nature  des 
marchandises  dont  ils  seront 
charges  donneroit  de  justes  soup- 
cons,  seront  tenus  d'exhiber  soit 
en  haute  mer,  soit  dans  les  ports 
et  havres,  non  seulement  leurs 
passeports  mais  encore  les  certifi- 
cats  qui  constateront  expresse- 
ment  que  leur  chargement  n'est 
pas  de  la  qualite  de  ceux  qui  sont 
prohibes  comme  contrebande. 

Article  XIII 

Si  I'exhibition  des  dits  certifi- 
cats  conduit  a  decouvrir  que  le 
navire  porte  des  marchandises 
prohibees  et  reputees  contrebande, 
consignees  pour  un  port  ennemi, 
il  ne  sera  pas  permis  de  briser  les 
ecoutilles  des  dits  navires.  ni 
d'ouvrir  aucune  caisse,  coffre, 
malle,  ballots,  tonneaux  et  autres 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


451 


or  to  open  any  chest,  coffers, 
packs,  casks,  or  any  other  vessels 
found  therein,  or  to  remove  the 
smallest  parcels  of  her  goods, 
whether  such  ship  belongs  to  the 
subjects  of  France,  or  the  inhabi- 
tants of  the  said  United  States, 
unless  the  lading  be  brought  on 
shore  in  the  presence  of  the  offi- 
cers of  the  court  of  admiralty,  and 
an  inventory  thereof  made ;  but 
there  shall  be  no  allowance  to  sell, 
exchange  or  alienate  the  same,  in 
any  manner,  until  after  that  due 
and  lawful  process  shall  have  been 
had  against  such  prohibited  goods, 
and  the  court  of  admiralty  shall 
by  a  sentence  pronounced  have 
confiscated  the  same ;  saving  al- 
ways as  well  the  ship  itself  as  any 
other  goods  found  therein,  which 
by  this  treaty  are  to  be  esteemed 
free,  neither  may  they  be  detained 
on  pretence  of  their  being  as  it 
were  infected  by  the  prohibited 
goods,  much  less  shall  they  be  con- 
fiscated, as  lawful  prize ;  but  if 
not  the  whole  cargo,  but  only  part 
thereof,  sliall  consist  of  prohibited 
or  contraband  goods,  and  the 
commander  of  the  ship  shall  be 
ready  and  willing  to  deliver  them 
to  the  captor  who  has  discovered 
them,  in  such  case  the  captor  hav- 
ing received  those  goods  shall 
forthwith  discharge  the  ship,  and 
not  hinder  her  by  any  means 
freely  to  prosecute  the  voyage  on 
which  she  was  bound.  But  in  case 


caisses  qui  s'y  trouveront,  ou  d'en 
deplacer  et  detourner  la  moindre 
partie  des  marchandises  soit  que 
le  navire  apartienne  aux  sujets  du 
Roi  tres  Chretien  ou  aux  habitans 
des  Etats  Unis,  jusqu'a  ce  que  la 
cargaison  ait  ete  mise  a  terre  en 
presence  des  officiers  des  cours 
d'amiraute,  et  que  I'inventaire  en 
ait  ete  fait ;  mais  on  ne  permettra 
pas  de  vendre,  echanger  ou  aliener 
les  navires  ou  leur  cargaison  en 
maniere  quelconque,  avant  que  le 
proces  ait  ete  fait  et  parfait  legale- 
ment  pour  declarer  la  contre- 
bande.  et  que  les  cours  d'amiraute 
auront  prononce  leur  confiscation 
par  jugement,  sans  prejudice 
neanmoins  des  navires,  ainsi  que 
des  marchandises  qui  en  vertu  du 
traite  doivent  etre  censees  libres. 
II  ne  sera  pas  permis  de  retenir 
ces  marchandises  sous  pretexte 
qu'elles  ont  ete  entachees  par  les 
marchandises  de  contrebande  et 
bien  moins  encore  de  les  confis- 
quer  comme  des  prises  legales. 
Dans  le  cas  ou  une  partie  seule- 
ment  et  non  la  totalite  du  charge- 
ment  consisteroit  en  marchandises 
de  contrebande,  et  que  le  com- 
mandant du  vaisseau  consente  a 
les  delivrer  au  corsaire  qui  les 
aura  decouvertes,  alors  le  capi- 
taine  qui  aura  fait  la  prise,  apres 
avoir  regu  ces  marchandises,  doit 
incontinent  relacher  le  navire  et 
ne  doit  I'empecher  en  aucune  ma- 
niere   de    continuer    son    voiage. 


452   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


the  contraband  merchandises  can- 
not be  all  received  on  board  the 
vessel  of  the  captor,  then  the  cap- 
tor may,  notwithstanding  the  offer 
of  delivering  him  the  contraband 
goods,  carry  the  vessel  into  the 
nearest  port  agreeable  to  what  is 
above  directed. 


Article  XIV 

On  the  contrary,  it  is  agreed 
that  whatever  shall  be  found  to  be 
laden  by  the  subjects  and  inhabi- 
tants of  either  party  on  any  ship 
belonging  to  the  enemys  of  the 
other,  or  to  their  subjects,  the 
whole,  although  it  be  not  of  the 
sort  of  prohibited  goods,  may  be 
confiscated  in  the  same  manner 
as  if  it  belonged  to  the  enemy, 
except  such  goods  and  merchan- 
dizes as  were  put  on  board  such 
ship  before  the  declaration  of  war, 
or  even  after  such  declaration,  if 
so  be  it  were  done  without  knowl- 
edge of  such  declaration.  So  that 
the  goods  of  the  subjects  and  peo- 
ple of  either  party,  whether  they 
be  of  the  nature  of  such  as  are 
prohibited  or  otherwise,  which,  as 
is  aforesaid,  were  put  on  board 
any  ship  belonging  to  an  enemy 
before  the  war  or  after  the  declar- 
ation of  the  same,  without  the 
knowledge  of  it,  shall  no  ways  be 
liable  to  confiscation,  but  shall 
well  and  truely  be  restored  with- 
out delay  to  the  proprietors   de- 


Mais  dans  le  cas  ou  les  marchan- 
dises  de  contrebande  ne  pourroient 
pas  etre  toutes  chargees  sur  le 
vaisseau  capteur,  alors  le  capitaine 
du  d®.  vaisseau  sera  le  maitre,  mal- 
gre  I'offre  de  remettre  la  contre- 
bande, de  conduire  le  patron  dans 
le  plus  prochain  port,  conforme- 
ment  a  ce  qui  est  prescrit  plus 
haut. 

Article  XIV 

On  est  convenu  au  contraire 
que  tout  ce  qui  se  trouvera 
charge  par  les  sujets  respectifs 
sur  des  navires  apartenants  aux 
ennemis  de  I'autre  partie  ou  a 
leurs  sujets  sera  confisque  sans 
distinction  des  marchandises  pro- 
hibees  ou  non  prohibees,  ainsi  et 
de  meme  que  si  elles  appartenoient 
a  I'ennemi,  a  I'exception  toute  f  ois, 
des  effets  et  marchandises  qui 
auront  ete  mis  a  bord  des  dits 
navires  avant  la  declaration  de 
guerre,  ou  meme  apres  la  d®.  de- 
claration, si  au  moment  du  charge- 
ment  on  a  pu  I'ignorer,  de  maniere 
que  les  marchandises  des  sujets 
des  deux  parties,  soit  qu'elles  se 
trouvent  du  nombre  de  celles  de 
contrebande  ou  autrement,  les 
quelles  comme  il  vient  d'etre  dit, 
auront  ete  mises  a  bord  d'un  vais- 
seau apartenant  a  I'ennemi,  avant 
la  guerre  ou  meme  apres  la  d®.  de- 
claration, lorsqu'on  I'ignoroit,  ne 
seront  en  aucune  maniere,  sujetes 
a  confiscation,  mais  seront  fidele- 
ment  et  de  bonne  foi  rendiies  sans 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


453 


manding  the  same ;  but  so  as  that 
if  the  said  merchandizes  be  con- 
traband, it  shall  not  be  any  ways 
lawful  to  carry  them  afterwards 
to  any  ports  belonging  to  the 
enemy.  The  two  contracting  par- 
ties agree,  that  the  term  of  two 
months  being  passed  after  the  dec- 
laration of  war,  their  respective 
subjects,  from  whatever  part  of 
the  world  they  come,  shall  not 
plead  the  ignorance  mentioned  in 
this  article. 

Article  XV 

And  that  more  effectual  care 
may  be  taken  for  the  security  of 
the  subjects  and  inhabitants  of 
both  parties,  that  they  suffer  no 
injury  by  the  men-of-war  or  pri- 
vateers of  the  other  party,  all  the 
commanders  of  the  ships  of  His 
Most  Christian  Majesty  and  of 
the  said  United  States,  and  all 
their  subjects  and  inhabitants, 
shall  be  forbid  doing  any  injury 
or  damage  to  the  other  side ;  and 
if  they  act  to  the  contrary,  they 
shall  be  punished,  and  shall  more- 
over be  bound  to  make  satisfac- 
tion for  all  matter  of  damage,  and 
the  interest  thereof,  by  reparation, 
under  the  pain  and  obligation  of 
their  person  and  goods. 


delai  a  leurs  proprietaires,  qui  les 
reclameront ;  bien  entendu  nean- 
moins  qu'il  ne  soit  pas  permis  de 
portee  dans  les  ports  ennemis  les 
marchandises  qui  seront  de  con- 
trebande.  Les  deux  parties  con- 
tractantes  conviennent  que  le 
terme  de  deux  mois,  passes  depuis 
la  declaration  de  guerre,  leurs  su- 
jets  respectifs,  de  quelque  partie 
du  monde  qu'ils  viennent  ne  pour- 
ront  plus  alleguer  I'ignorance  dont 
il  est  question  dans  le  present 
article. 

Article  XV 

Et  afin  de  pourvoir  plus  effica- 
cement  a  la  surete  des  sujets  des 
deux  parties  contractantes,  pour 
qu'il  ne  leur  soit  fait  aucun  pre- 
judice par  les  vaisseaux  de  guerre 
de  I'autre  partie  ou  par  des  arma- 
teurs  particuliers,  il  sera  fait  de- 
fense a  tous  capitaines  des  vais- 
seaux de  sa  Majeste  tres  Chre- 
tienne  et  des  dits  Etats  Unis,  et  a 
tous  leurs  sujets  de  faire  aucun 
dommage  ou  insulte  a  ceux  de 
I'autre  partie,  et  au  cas  ou  ils  y 
contreviendroient,  ils  en  seront 
punis ;  et,  de  plus,  ils  seront  tenus 
et  obliges  en  leurs  personnes  et  en 
leurs  biens  de  reparer  tous  les 
dommaees  et  interets. 


Article  XVI 

All  ships  and  merchandizes,  of 
what  nature  soever,  which  shall  be 


Article  XVI 

Tous  vaisseaux  et  marchandises 
de  quelque   nature  que   ce  puisse 


454   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


rescued  out  of  the  hands  of  any 
pirates  or  robbers  on  the  high 
seas,  shall  be  brought  into  some 
port  of  either  State,  and  shall  be 
delivered  to  the  custody  of  the 
officers  of  that  port,  in  order  to 
be  restored  entire  to  the  true  pro- 
prietor, as  soon  as  due  and  suffi- 
cient proof  shall  be  made  con- 
cerning the  property  thereof. 


etre,  lors  qu'ils  auront  ete  enleves 
des  mains  de  quelques  pirates  en 
pleine  nier,  seront  amenes  dans 
quelque  port  de  I'un  des  deux 
Etats,  et  seront  remis  a  la  garde 
des  officiers  du  dit  port  afin  d'etre 
rendus,  en  entier,  a  leur  veritable 
proprietaire,  aussitot  qu'il  aura 
diiement  et  sufisament  fait  cons- 
ter  de  sa  propriete. 


Article  XVII 

It  shall  be  lawful  for  the  ships 
of  war  of  either  party,  and  pri- 
vateers, freely  to  carry  whither- 
soever they  please  the  ships  and 
goods  taken  from  their  enemies, 
without  being  obliged  to  pay  any 
duty  to  the  officers  of  the  admi- 
ralty or  any  other  judges;  nor 
shall  such  prizes  be  arrested  or 
seized  when  they  come  to  and 
enter  the  ports  of  either  party ; 
nor  shall  the  searchers  or  other 
officers  of  those  places  search  the 
same,  or  make  examination  con- 
cerning the  lawfulness  of  such 
prizes,  but  they  may  hoist  sail  at 
any  time,  and  depart  and  carry 
their  prizes  to  the  places  ex- 
pressed in  their  commissions, 
which  the  commanders  of  such 
ships  of  war  shall  be  obliged  to 
show ;  on  the  contrary,  no  shelter 
or  refuge  shall  be  given  in  their 
ports  to  such  as  shall  have  made 
prize  of  the  subjects,  people  or 
property  of  either  of  the  parties ; 


Article  XVII 

Les  vaisseaux  de  guerre  de  sa 
Majeste  tres  Chretienne  et  ceux 
des  Etats  Unis,  de  meme  que  ceux 
que  leurs  sujets  auront  armes  en 
guerre,  pourront,  en  toute  liberte, 
conduire  ou  bon  leur  semblera  les 
prises  qu'ils  auront  faites  sur 
leurs  ennemis,  sans  etre  obliges  a 
aucuns  droits,  soit  des  sieurs 
amiraux  ou  de  I'amiraute  ou  d'au- 
cuns  autres,  sans  qu'aussi  les  dits 
vaisseaux  ou  les  d'^.  prises,  en- 
trant dans  les  havres  ou  ports  de 
sa  Majeste  tres  Chretienne  ou  des 
dits  Etats  Unis,  puissent  etre  ar- 
retes  ou  saisis,  ni  que  les  officiers 
des  lieux  puissent  prendre  con- 
noissance  de  la  validite  des  d®. 
prises,  les  quelles  pourront  sortir 
et  etre  conduites  franchement  et 
en  toute  liberte,  aux  lieux  portes 
par  les  commissions  dont  les  capi- 
taines  des  dits  vaisseaux  seront 
obliges  de  faire  aparoir.  Et  au 
contraire,  ne  sera  donne  asile  ni 
retraite  dans  leurs  ports  ou  havres 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


455 


but  if  such  shall  come  in,  being 
forced  by  stress  of  weather,  or 
the  danger  of  the  sea,  all  proper 
means  shall  be  vigorously  used 
that  they  go  out  and  retire  from 
thence  as  soon  as  possible. 


a  ceux  qui  auront  fait  des  prises 
sur  les  sujets  de  sa  Majeste  ou  des 
dits  Etats  Unis  ;  et  s'ils  sont  forces 
d'y  entrer  par  tempete  ou  peril  de 
la  mer,  on  les  fera  sortir  le  plustot 
qu'il  sera  possible. 


Article  XVIII 

If  any  ship  belonging  to  either 
of  the  parties,  their  people  or 
subjects,  shall,  within  the  coasts 
or  dominions  of  the  other,  stick 
upon  the  sands,  or  be  wrecked,  or 
suffer  any  other  damage,  all 
friendly  assistance  and  relief  shall 
be  given  to  the  persons  ship- 
wrecked, or  such  as  shall  be  in 
danger  thereof.  And  letters  of 
safe  conduct  shall  likewise  be 
given  to  them  for  their  free  and 
quiet  passage  from  thence  and 
the  return  of  every  one  to  his 
own  country. 


Article  XVIII 

Dans  le  cas  ou  un  vaisseau 
apartenant  a  I'un  des  deux  Etats 
ou  a  leurs  sujets,  aura  echoue, 
fait  naufrage  ou  souffert  quelqu' 
autre  dommage  sur  les  cotes  ou 
sous  la  domination  de  Tune  des 
deux  parties,  il  sera  donne  toute 
aide  et  assistance  amiable  aux  per- 
sonnes  naufragees  ou  qui  se  trou- 
vent  en  danger,  et  il  leur  sera  ac- 
corde  des  sauf  conduits  pour  as- 
surer leur  passage  et  leur  retour 
dans  leur  patrie. 


Article  XIX 

In  case  the  subjects  and  inhabi- 
tants of  either  party,  with  their 
shipping,  whether  publick  and  of 
war,  or  private  and  of  merchants, 
be  forced,  through  stress  of 
weather,  pursuit  of  pirates  or  ene- 
mies, or  any  other  urgent  neces- 
sity for  seeking  of  shelter  and 
harbour,  to  retreat  and  enter  into 
any  of  the  rivers,  bays,  roads,  or 
ports  belonging  to  the  other  party, 
they  shall  be  received  and  treated 
with  all   humanity  and  kindness. 


Article  XIX 

Lorsque  les  sujets  et  habitans 
de  I'une  des  deux  parties  avec 
leurs  vaisseaux  soit  publics  et  de 
guerre,  soit  particuliers  et  mar- 
chands,  seront  forces  par  une  tem- 
pete, par  la  poursuite  des  pirates 
et  des  ennemis.  ou  par  quelqu' 
autre  necessite  urgente,  de  cher- 
cher  refuge  et  un  abri,  de  se  re- 
tirer  et  entrer  dans  quelqu'  une 
des  rivieres,  bayes,  rades  ou  ports 
de  I'une  des  deux  parties,  ils  se- 
ront regus  et  traites  avec  huma- 


456   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


and  enjoy  all  friendly  protection 
and  help ;  and  they  shall  be  per- 
mitted to  refresh  and  provide 
themselves,  at  reasonable  rates, 
with  victuals  and  all  things  need- 
ful for  the  sustenance  of  their 
persons  or  reparation  of  their 
ships,  and  conveniency  of  their 
voyage ;  and  they  shall  no  ways  be 
detained  or  hindered  from  return- 
ing out  of  the  said  ports  or  roads, 
but  may  remove  and  depart  when 
and  whither  they  please,  without 
any  let  or  hindrance. 


nite,  et  jouiront  de  toute  amitie, 
protection  et  assistance,  et  il  leur 
sera  permis  de  se  pourvoir  de 
raffraichissemens,  de  vivres,  et  de 
toutes  choses  necessaires  pour  leur 
subsistance,  pour  la  reparation  de 
leurs  vaisseaux,  et  pour  continiier 
leur  vo'iage ;  le  tout  mo'iennant  un 
prix  raisonable,  et  ils  ne  seront 
retenus  en  aucune  maniere,  ni  em- 
peches  de  sortir  des  dits  ports  ou 
rades,  mais  pourront  se  retirer  et 
partir  quand,  et  comme  il  leur 
plaira,  sans  aucun  obstacle  ni  em- 
pechement. 


Article  XX 

For  the  better  promoting  of 
commerce  on  both  sides,  it  is 
agreed  that  if  a  war  shall  break 
out  between  the  said  two  nations, 
six  months  after  the  proclamation 
of  war  shall  be  allowed  to  the 
merchants  in  the  cities  and  towns 
where  they  live  for  selling  and 
transporting  their  goods  and  mer- 
chandizes ;  and  if  any  thing  be 
taken  from  them,  or  any  injury 
be  done  them  within  that  term  by 
either  party,  or  the  people  or  sub- 
jects of  either,  full  satisfaction 
shall  be  made  for  the  same. 


Article  XXI 

No  subjects  of  the  Most  Chris- 
tian King  shall  apply  for  or  take 
any    commission,    or    letters    of 


Article  XX 

Afin  de  promouvoir  d'autant 
mieux  le  commerce  de  deux  cotes, 
il  est  convenu  que  dans  le  cas  oil 
la  guerre  surviendroit  entre  les 
deux  nations  susdites,  il  sera  ac- 
corde  six  mois,  apres  la  declara- 
tion de  guerre,  aux  marchands 
dans  les  villes  et  cites  qu'ils  habi- 
tent,  pour  rassembler  et  transpor- 
ter les  marchandises :  et  s'il  en  est 
enleve  quelque  chose  ou  s'il  leur  a 
ete  fait  quelqu'  injure  durant  le 
terme  prescrit  ci-dessus,  par  Tune 
des  deux  parties,  leurs  peuples  ou 
sujets,  il  leur  sera  donne  a  cet 
egard  pleine  et  entiere  satisfac- 
tion. 

Article  XXI 

Aucun  sujet  du  Roi  tres  Chre- 
tien ne  prendra  de  commission  ou 
de  lettres  de  marque,  pour  armer 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


457 


marque,  for  arming  any  ship  or 
ships  to  act  as  privateers  against 
the  said  United  States,  or  any  of 
them,  or  against  the  subjects,  peo- 
ple or  inhabitants  of  the  said 
United  States,  or  any  of  them,  or 
against  the  property  of  any  of  the 
inhabitants  of  any  of  them,  from 
any  Prince  or  State  with  which 
the  said  United  States  shall  be  at 
war;  nor  shall  any  citizen,  sub- 
ject, or  inhabitant  of  the  said  Uni- 
ted States,  or  any  of  them,  apply 
for  or  take  any  commission  or 
letters  of  marque  for  arming  any 
ship  or  ships  to  act  as  privateers 
against  the  subjects  of  the  Most 
Christian  King,  or  any  of  them, 
or  the  property  of  any  of  them, 
from  any  Prince  or  State  with 
which  the  said  King  shall  be  at 
war;  and  if  any  person  of  either 
nation  shall  take  such  commis- 
sions or  letters  of  marque,  he 
shall  be  punished  as  a  pirate. 


quelque  vaisseau  ou  vaisseaux  a 
Teffet  d'agir  comme  corsaires 
contre  les  dits  Etats  Unis  ou  quel- 
ques  uns  d'entr'  eux,  ou  contre  les 
sujets,  peuples  ou  habitans 
d'iceux,  ou  contre  leur  propriete 
ou  celle  des  habitans  d'aucun  d'en- 
tr' eux,  de  quelque  prince  que  ce 
soit  avec  lequel  les  dits  Etats  Unis 
seront  en  guerre.  De  meme  aucun 
citoien,  sujet,  ou  habitant  des  sus- 
dits  Etats  Unis  et  de  quelqu'  un 
d'entr'  eux,  ne  demandera  ni 
n'acceptera  aucune  commission  ou 
lettres  de  marque,  pour  armer 
quelque  vaisseau,  ou  vaisseaux 
pour  courre  sus  aux  sujets  de  sa 
Majeste  tres  Chretienne,  ou  quel- 
ques  uns  d'entre  eux  ou  leur  pro- 
priete, de  quelque  prince  ou  etat 
que  ce  soit  avec  qui  sa  d^.  Majeste 
se  trouvera  en  guerre ;  et  si  quel- 
qu' un  de  I'une  ou  de  I'autre  na- 
tion prenoit  de  pareilles  commis- 
sions ou  lettres  de  marque,  il  sera 
puni  comme  pirate. 


Article  XXII 

It  shall  not  be  lawful  for  any 
foreign  privateers,  not  belonging 
to  subjects  of  the  Most  Christian 
King  nor  citizens  of  the  said  Uni- 
ted States,  who  have  commissions 
from  any  other  Prince  or  State  in 
enmity  with  either  nation,  to  fit 
their  ships  in  the  ports  of  either 
the  one  or  the  other  of  the  afore- 
said parties,  to  sell  what  they  have 


Article  XXII 

II  ne  sera  permis  a  aucun  cor- 
saire  etranger  non  apartenant  a 
quelque  sujet  de  sa  Majeste  tres 
Chretienne  ou  a  un  citoien  des  dits 
Etats  Unis,  lequel  aura  une  com- 
mission de  la  part  d'un  prince  ou 
d'une  puissance  en  guerre  avec 
Tune  des  deux  nations,  d'armer 
leurs  vaisseaux  dans  les  ports  de 
Tune  des  deux  parties,  ni  d'y  ven- 


458   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


taken,  or  in  any  other  manner 
whatsoever  to  exchange  their 
ships,  merchandizes  or  any  other 
lading;  neither  shall  they  be  al- 
lowed even  to  purchase  victuals, 
except  such  as  shall  be  necessary 
for  their  going  to  the  next  port 
of  that  Prince  or  State  from 
which  they  have  commissions. 


dre  les  prises  qu'il  aura  faites,  ni 
decharger  en  autre  maniere  quel- 
conque  les  vaisseaux,  marchan- 
dises  ou  aucune  partie  de  leur  car- 
gaison ;  il  ne  sera  meme  pas  per- 
mis  d'acheter  d'autres  vivres  que 
ceux  qui  lui  seront  necessaires 
pour  se  rendre  dans  le  port  le  plus 
voisin  du  prince  ou  de  I'etat  dont 
il  tient  sa  commission. 


Article  XXIII 

It  shall  be  lawful  for  all  and 
singular  the  subjects  of  the  Most 
Christian  King,  and  the  citizens, 
people  and  inhabitants  of  the  said 
United  States,  to  sail  with  their 
ships  with  all  manner  of  liberty 
and  security,  no  distinction  being 
made  who  are  the  proprietors  of 
the  merchandizes  laden  thereon, 
from  any  port  to  the  places  of 
those  who  now  are  or  hereafter 
shall  be  at  enmity  with  the  Most 
Christian  King  or  the  United 
States.  It  shall  likewise  be  law- 
ful for  the  subjects  and  inhabi- 
tants aforesaid  to  sail  with  the 
ships  and  merchandizes  aforemen- 
tioned, and  to  trade  with  the  same 
liberty  and  security  from  the 
places,  ports  and  havens  of  those 
who  are  enemies  of  both  or  either 
party,  without  any  opposition  or 
disturbance  whatsoever,  not  only 
directly  from  the  places  of  the 
enemy  aforementioned  to  neutral 
places,   but  also    from   one   place 


Article  XXIII 

II  sera  permis  a  tous  et  un  cha- 
cun  des  sujets  du  Roi  tres  Chre- 
tien et  aux  cito'iens,  peuple  et  ha- 
bitans  des  susdits  Etats  Unis,  de 
naviguer  avec  leurs  batimens  avec 
toute  liberte  et  surete,  sans  qu'il 
puisse  etre  fait  d'exception  a  cet 
egard,  a  raison  des  proprietaires 
des  marchandises  chargees  sur  les 
dits  batimens  venant  de  quelque 
port  que  ce  soit,  et  destines  pour 
quelque  place  d'une  puissance 
actuellement  ennemie,  ou  qui 
pourra  I'etre  dans  la  suite  de  sa 
Majeste  tres  Chretienne  ou  des 
Etats  Unis.  II  sera  permis  egale- 
ment  aux  sujets  et  habitans  sus 
mentionnes  de  naviguer  avec  leurs 
vaisseaux  et  marchandises  et  de 
frequenter  avec  la  meme  liberte 
et  surete,  les  places,  ports,  et 
havres  des  puissances  ennemies 
des  deux  parties  contractantes  ou 
d'une  d'entre  elles,  sans  opposition 
ni  trouble,  et  de  faire  le  commerce 
non    seulement    directement    des 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


459 


belonging  to  an  enemy  to  another 
place  belonging  to  an  enemy, 
whether  they  be  under  the  juris- 
diction of  the  same  Prince  or  un- 
der several.  And  it  is  hereby  stip- 
ulated that  free  ships  shall  also 
give  a  freedom  to  goods,  and  that 
everything  shall  be  deemed  to  be 
free  and  exempt  which  shall  be 
found  on  board  the  ships  belong- 
ing to  the  subjects  of  either  of  the 
confederates,  although  the  whole 
lading  or  any  part  thereof  should 
appertain  to  the  enemies  of  either, 
contraband  goods  being  always  ex- 
cepted. It  is  also  agreed  in  like 
manner  that  the  same  liberty  be 
extended  to  persons  who  are  on 
board  a  free  ship,  with  this  effect, 
that  although  they  be  enemies  to 
both  or  either  party,  they  are  not 
to  be  taken  out  of  that  free  ship, 
unless  they  are  soldiers  and  in 
actual  service  of  the  enemies. 


ports  de  I'ennemi  susdit  a  un  port 
neutre,  mais  aussi  d'un  port  en- 
nemi  a  un  autre  port  ennemi,  soit 
qu'il  se  trouve  sous  sa  jurisdiction 
ou  sous  celle  de  plusieurs ;  et  il  est 
stipule  par  le  present  traite  que  les 
batimens  libres  assureront  egale- 
ment  la  liberte  des  marchandises, 
et  qu'on  jugera  libres  toutes  les 
choses  qui  se  trouveront  abord  des 
navires  apartenants  aux  sujets 
d'une  des  parties  contractantes, 
quand  meme  le  chargement  ou 
partie  d'icelui  apartiendroit  aux 
ennemis  de  Tune  des  deux ;  bien 
entendu  neanmoins  que  la  contre- 
bande  sera  toujours  exceptee.  II 
est  egalement  convenu  que  cette 
meme  liberte  s'etendroit  aux  per- 
sonnes  qui  pourroient  se  trouver 
abord  du  batiment  libre,  quand 
meme  elles  seroient  ennemies  de 
I'une  des  deux  parties  contractan- 
tes, et  elles  ne  pourront  etre  en- 
levees  des  dits  navires,  a  moins 
qu'elles  ne  soient  militaires  et 
actuellement   au   service    de   I'en- 


Article  XXIV 

This  liberty  of  navigation  and 
commerce  shall  extend  to  all  kinds 
of  merchandizes,  excepting  those 
only  which  are  distinguished  by 
the  name  of  contraband ;  and  un- 
der this  name  of  contraband  or 
prohibited  goods  shall  be  compre- 
hended arms,  great  guns,  bombs 
with  the  fuzes,  and  other  things 


Article  XXIV 

Cette  liberte  de  navigation  et  de 
commerce  doit  s'etendre  sur 
toutes  sortes  de  marchandises,  a 
I'exception  seulement  de  celles  qui 
sont  designees  sous  le  nom  de  con- 
trebande :  Sous  ce  nom  de  contre- 
bande  ou  de  marchandises  prohi- 
bees,  doivent  etre  compris  les 
armes,  canons,  bombes  avec  leurs 


460    TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


belonging  to  them,  cannon-ball, 
gunpowder,  match,  pikes,  swords, 
lances,  spears,  halberds,  mortars, 
petards,  granades,  saltpetre,  mus- 
kets, musket-ball,  bucklers,  hel- 
mets, breast-plates,  coats  of  mail, 
and  the  like  kinds  of  arms  proper 
for  arming  soldiers,  musket-rests, 
belts,  horses  with  their  furniture, 
and  all  other  warlike  instruments 
whatever.  These  merchandizes 
which  follow  shall  not  be  reck- 
oned among  contraband  or  pro- 
hibited goods ;  that  is  to  say,  all 
sorts  of  cloths,  and  all  other 
manufactures  woven  of  any  wool, 
flax,  silk,  cotton,  or  any  other  ma- 
terials whatever ;  all  kinds  of 
wearing  apparel,  together  with  the 
species  whereof  they  are  used  to 
be  made ;  gold  and  silver,  as  well 
coined  as  uncoined,  tin,  iron,  lat- 
ten,  copper,  brass,  coals ;  as  also 
wheat  and  barley,  and  any  other 
kind  of  corn  and  pulse ;  tobacco, 
and  likewise  all  manner  of  spices ; 
salted  and  smoked  flesh,  salted 
fish,  cheese  and  butter,  beer,  oils, 
wines,  sugars,  and  all  sorts  of 
salts ;  and  in  general  all  provi- 
sions which  serve  for  the  nourish- 
ment of  mankind  and  the  suste- 
nance of  life ;  furthermore,  all 
kinds  of  cotton,  hemp,  flax,  tar, 
pitch,  ropes,  cables,  sails,  sail- 
cloths, anchors  and  any  parts  of 
anchors,  also  ships'  masts,  planks, 
boards  and  beams  of  what  trees 
soever ;     and     all     other     things 


fusees  et  autres  choses  y  relatives, 
boulets,  poudre  a  tirer,  meches, 
piques,  epees,  lances,  dards,  halle- 
bardes,  mortiers,  petards,  grena- 
des, salpetre,  fusils,  balles,  bou- 
cliers,  casques,  cuirasses,  cote  de 
mailles,  et  autres  armes  de  cette 
espece,  propres  a  armer  les  sol- 
dats,  porte-mousqueton,  baudriers, 
chevaux  avec  leurs  equipages,  et 
tous  autres  instrumens  de  guerre 
quelconques.  Les  marchandises 
denommees  ci-apres  ne  seront  pas 
comprises  parmi  la  contrebande 
ou  choses  prohibees,  savoir :  toutes 
sortes  de  draps  et  toutes  autres 
etoffes  de  laine,  lin,  soye,  coton  ou 
d'autres  matieres  quelconques ; 
toutes  sortes  de  vetemens  avec  les 
etoffes  dont  on  a  coutume  de  les 
faire,  Tor  et  I'argent  monnoie  ou 
non,  retain,  le  fer,  laiton,  cuivre, 
airain,  charbons,  de  meme  que  le 
froment  et  I'orge,  et  toute  autre 
sorte  de  bleds  et  legumes  ;  le  tabac 
et  toutes  les  sortes  d'epiceries,  la 
viande  salee  et  fumee,  poisson 
salle,  fromage  et  beurre,  bierre, 
huiles,  vins,  sucres,  et  toute  espece 
de  sel,  et  en  general  toutes  provi- 
sions servant  pour  la  nourriture 
de  I'homme  et  pour  le  soutien  de 
la  vie.  De  plus,  toutes  sortes  de 
coton,  de  chanvre.  lin,  goudron, 
poix,  cordes,  cables,  voiles,  toiles 
a  voiles,  ancres,  parties  d'ancres, 
mats,  planches,  madriers,  et  bois 
de  toute  espece,  et  toutes  autres 
choses  propres  a  la  construction  et 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


461 


proper  either  for  building  or  re- 
pairing ships,  and  all  other  goods 
whatever  which  have  not  been 
worked  into  the  form  of  any  in- 
strument or  thing  prepared  for 
war  by  land  or  by  sea,  shall  not 
be  reputed  contraband,  much  less 
such  as  have  been  already  wrought 
and  made  up  for  any  other  use ; 
all  which  shall  be  wholly  reckoned 
among  free  goods ;  as  likewise  all 
other  merchandizes  and  things 
which  are  not  comprehended  and 
particularly  mentioned  in  the  fore- 
going enumeration  of  contraband 
goods ;  so  that  they  may  be  trans- 
ported and  carried  in  the  freest 
manner  by  the  subjects  of  both 
confederates,  even  to  places  be- 
longing to  an  enemy,  such  towns 
or  places  being  only  excepted  as 
are  at  that  time  besieged,  blocked 
up,  or  invested. 


reparation  des  vaisseaux,  et  autres 
matieres  quelconques  qui  n'ont 
pas  la  forme  d'un  instrument  pre- 
pare pour  la  guerre  par  terre  com- 
me  par  mer,  ne  seront  pas  re- 
putees  contrebande,  et  encore 
moins  celles  qui  sont  deja  prepa- 
rees  pour  quelqu'  autre  usage : 
Toutes  les  choses  denommees  ci- 
dessus,  doivent  etre  comprises 
parmi  les  marchandises  libres,  de 
meme  que  toutes  les  autres  mar- 
chandises et  efifets  qui  ne  sont  pas 
compris  et  particulierement  nom- 
mes  dans  I'enumeration  des  mar- 
chandises de  contrebande ;  de  ma- 
niere  qu'elles  pourront  etre  trans- 
portees  et  conduites  de  la  maniere 
la  plus  libre,  par  les  sujets  des 
deux  parties  contractantes,  dans 
des  places  ennemies,  a  I'exception 
neanmoins  de  celles  qui  se  trouve- 
roient  actuellement  assiegees,  blo- 
quees  ou  investies. 


Article  XXV 

To  the  end  that  all  manner  of 
dissentions  and  quarrels  may  be 
avoided  and  prevented,  on  one 
side  and  the  other,  it  is  agreed 
that  in  case  either  of  the  parties 
hereto  should  be  engaged  in  war, 
the  ships  and  vessels  belonging  to 
the  subjects  or  people  of  the  other 
ally  must  be  furnished  with  sea- 
letters  or  passports,  expressing 
the  name,  property  and  bulk  of 
the  ship,  as  also  the  name  and 
place  of  habitation  of  the  master 


Article  XXV 

Afin  d'ecarter  et  de  prevenir  de 
part  et  d'autre  toutes  discussions 
et  querelles,  il  a  ete  convenu  que 
dans  le  cas  ou  I'une  des  deux  par- 
ties se  trouveroit  engagee  dans 
une  guerre,  les  vaisseaux  et  bati- 
mens  apartenans  aux  sujets  ou 
peuple  de  I'autre  allie,  devront 
etre  pourvus  de  lettres  de  mer  ou 
passeports,  les  quels  exprimeront 
le  nom,  la  propriete  et  le  port  du 
navire,  ainsi  que  le  nom  et  la  de- 
meure  du  maitre  ou  commandant 


462   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


or  commander  of  the  said  ship, 
that  it  may  appear  thereby  that 
the  ship  really  and  truely  belongs 
to  the  subjects  of  one  of  the  par- 
ties, which  passport  shall  be  made 
out  and  granted  according  to  the 
form  annexed  to  this  treaty ;  they 
shall  likewise  be  recalled  every 
year,  that  is,  if  the  ship  happens 
to  return  home  within  the  space 
of  a  year.  It  is  likewise  agreed 
that  such  ships  being  laden  are 
to  be  provided  not  only  with  pass- 
ports as  above  mentioned,  but  also 
with  certificates,  containing  the 
several  particulars  of  the  cargo, 
the  place  whence  the  ship  sailed, 
and  whither  she  is  bound,  that  so 
it  may  be  known  whether  any  for- 
bidden or  contraband  goods  be  on 
board  the  same ;  which  certificates 
shall  be  made  out  by  the  officers 
of  the  place  whence  the  ship  set 
sail,  in  the  accustomed  form ;  and 
if  any  one  shall  think  it  fit  or  ad- 
visable to  express  in  the  said  cer- 
tificates the  person  to  whom  the 
goods  on  board  belong,  he  may 
freelv  do  so. 


du  dit  vaisseau,  afin  qu'il  aparoisse 
par  la  que  le  meme  vaisseau  apar- 
tient  reellement  et  veritablement 
aux  sujets  de  Tune  des  deux  par- 
ties contractantes ;  lequel  passe- 
port  devra  etre  expedie  selon  le 
modele  annexe  au  present  traite. 
Ces  passeports  devront  egalement 
etre  renouvelles  chaque  annee, 
dans  le  cas  ou  le  vaisseau  retourne 
chez  lui  dans  I'espace  d'une  annee. 
II  a  ete  convenu  egalement  que  les 
vaisseaux  susmentionnes,  dans  le 
cas  ou  ils  seroient  charges,  devront 
etre  pourvus  non  seulement  de 
passeports,  mais  aussi  de  certifi- 
cats,  contenant  le  detail  de  la  car- 
gaison,  le  lieu  d'ou  le  vaisseau  est 
parti,  et  la  declaration  des  mar- 
chandises  de  contrebande  qui 
pourroient  se  trouver  abord ;  les- 
quels  certificats  devront  etre  ex- 
pedies  dans  la  forme  accoutumee 
par  les  officiers  du  lieu  d'ou  le 
vaisseau  aura  fait  voile :  et  s'il 
etoit  juge  utile  ou  prudent  d'ex- 
primer  dans  les  dits  passeports,  la 
personne  a  laquelle  les  marchan- 
dises  apartiennent,  on  pourra  le 
faire  librement. 


Article  XXVI 

The  ships  of  the  subjects  and 
inhabitants  of  either  of  the  par- 
ties coming  upon  any  coasts  be- 
longing to  either  of  the  said  allies, 
but  not  willing  to  enter  into  port, 
or  being  entered  into  port  and  not 
willins:  to  unload  their  cars^oes  or 


Article  XXVI 

Dans  le  cas  ou  les  vaisseaux  des 
sujets  et  habitans  de  I'une  des 
deux  parties  contractantes  apro- 
cheroient  des  cotes  de  I'autre,  sans 
cependant  avoir  le  dessein  d'entrer 
dans  le  port,  ou  apres  etre  entre. 
sans  avoir  le  dessein  de  decharger 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


463 


break  bulk,  they  shall  be  treated 
according  to  the  general  rules  pre- 
scribed or  to  be  prescribed  rela- 
tive to  the  object  in  question. 


Article  XXVII 

If  the  ships  of  the  said  subjects, 
people  or  inhabitants  of  either  of 
the  parties  shall  be  met  with, 
either  sailing  along  the  coasts  or 
on  the  high  seas,  by  any  §hip  of 
war  of  the  other,  or  by  any  pri- 
vateers, the  said  ships  of  war  or 
privateers,  for  the  avoiding  of  any 
disorder,  shall  remain  out  of 
cannon-shot,  and  may  send  their 
boats  aboard  the  merchant  ship 
which  they  shall  so  meet  with,  and 
may  enter  her  to  number  of  two 
or  three  men  only,  to  whom  the 
master  or  commander  of  such  ship 
or  vessel  shall  exhibit  his  passport 
concerning  the  property  of  the 
ship,  made  out  according  to  the 
form  inserted  in  this  present 
treaty,  and  the  ship,  when  she 
shall  have  showed  such  passport, 
shall  be  free  and  at  liberty  to 
pursue  her  voyage,  so  as  it  shall 
not  be  lawful  to  molest  or  search 
her  in  any  manner,  or  to  give  her 
chase  or  force  her  to  quit  her  in- 
tended course. 


la  cargaison,  ou  rompre  leur 
charge,  on  se  conduira  a  leur 
egard  suivant  les  reglemens  gene- 
raux  prescrits  ou  a  prescrire  rela- 
tivement  a  I'objet  dont  il  est  ques- 
tion. 

Article  XXVII 

Losqu'un  batiment  apartenant 
aux  dits  sujets,  peuple  et  habitans 
de  I'une  des  deux  parties,  sera  ren- 
contre navigant  le  long  des  cotes 
ou  en  pleine  mer,  par  un  vaisseau 
de  guerre  de  I'autre,  ou  par  un  ar- 
mateur,  le  dit  vaisseau  de  guerre, 
ou  armateur,  afin  d'eviter  tout 
desordre,  se  tiendra  hors  de  la 
portee  du  canon,  et  pourra  en- 
vo'ier  sa  chaloupe  abord  du  bati- 
ment marchand,  et  y  faire  entrer 
deux  ou  trois  hommes,  aux  quels 
le  maitre  ou  commandant  du  bati- 
ment montrera  son  passeport,  le 
quel  devra  etre  conforme  a  la  for- 
mule  annexee  au  present  traite,  et 
constatera  la  propriete  du  bati- 
ment :  et  apres  que  le  dit  batiment 
aura  exhibe  un  pareil  passeport,  il 
lui  sera  libre  de  continiier  son 
voTage,  et  il  ne  sera  pas  permis 
de  le  molester,  ni  de  chercher  en 
aucune  maniere,  de  lui  donner  la 
chasse.  ou  de  le  forcer  de  quiter 
la  course  qu'il  s'etoit  proposee. 


Article  XXVIII 

It  is  also  agreed  that  all  goods, 
when  once  put  on  board  the  ships 


Article  XXVIII 

II  est  convenu  que  lorsque  les 

marchandises  auront  ete  charcrees 


464  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


or  vessels  of  either  of  the  two 
contracting  parties,  shall  be  sub- 
ject to  no  farther  visitation;  but 
all  visitation  or  search  shall  be 
made  beforehand,  and  all  prohib- 
ited goods  shall  be  stopped  on  the 
spot,  before  the  same  be  put  on 
board,  unless  there  are  manifest 
tokens  or  proofs  of  fraudulent 
practice ;  nor  shall  either  the  per- 
sons or  goods  of  the  subjects  of 
His  Most  Christian  Majesty  or 
the  United  States  be  put  under 
any  arrest  or  molested  by  any 
other  kind  of  embargo  for  that 
cause ;  and  only  the  subject  of 
that  State  to  whom  the  said  goods 
have  been  or  shall  be  prohibited, 
and  who  shall  presume  to  sell  or 
alienate  such  sort  of  goods,  shall 
be  duly  punished  for  the  offence. 


Article  XXIX 

The  two  contracting  parties 
grant  mutually  the  liberty  of  hav- 
ing each  in  the  ports  of  the  other 
Consuls,  Vice-Consuls,  agents, 
and  commissaries,  whose  func- 
tions shall  be  regulated  by  a  par- 
ticular agreement. 


sur  les  vaisseaux  ou  batimens  de 
I'une  des  deux  parties  contractan- 
tes,  elles  ne  pourront  plus  etre  as- 
sujeties  a  aucune  visite;  toute 
visite  et  recherche  devant  etre 
faite  avant  le  chargement,  et  les 
marchandises  prohibees  devant 
etre  arretees  et  saisies  sur  la  plage 
avant  de  pouvoir  etre  embarquees, 
a  moins  qu'on  n'ait  des  indices 
manifestes  ou  des  preuves  de 
versements  frauduleux.  De  meme 
aucun  'des  sujets  de  sa  Majeste 
tres  Chretienne  ou  des  Etats  Unis, 
ni  leurs  marchandises,  ne  pourront 
etre  arretes  ni  molestes  pour  cette 
cause,  par  aucune  espece  d'embar- 
go ;  et  les  seuls  sujets  de  I'etat, 
auxquels  les  d**.  marchandises 
auront  ete  prohibees,  et  qui  se  se- 
ront  emancipes  a  vendre  et  aliener 
de  pareilles  marchandises,  seront 
diiement  punis  pour  cette  contra- 
vention. 

Article  XXIX 

Les  deux  parties  contractantes 
se  sont  accordees  mutuellement  la 
faculte  de  tenir  dans  leurs  ports 
respectifs,  des  consuls,  vice-con- 
suls, agents  et  commissaires,  dont 
les  fonctions  seront  reglees  par 
une  convention  particuliere. 


Article  XXX 

And  the  more  to  favour  and 
facilitate  the  commerce  which  the 
subjects  of  the  United  States  may 
have  with  France,  the  Most  Chris- 


Article  XXX 

Pour  d'autant  plus  favoriser  et 
faciliter  le  commerce  que  les  su- 
jets des  Etats  Unis  feront  avec  la 
France,  le  Roi  tres  Chretien  leur 


TREATY  OF  AMITY  AND  COMMERCE,  1778 


465 


tian  King  will  grant  them  in 
Europe  one  or  more  free  ports, 
where  they  may  bring  and  dispose 
of  all  the  produce  and  merchan- 
dize of  the  thirteen  United  States ; 
and  His  Majesty  will  also  con- 
tinue to  the  subjects  of  the  said 
States  the  free  ports  which  have 
been  and  are  open  in  the  French 
islands  of  America ;  of  all  which 
free  ports  the  said  subjects  of  the 
United  States  shall  enjoy  the  use, 
agreeable  to  the  regulations  which 
relate  to  them. 


accordera  en  Europe  un  ou  plu- 
sieurs  ports  Francs  dans  lesquels 
ils  pourront  amener  et  debiter 
toutes  les  denrees  et  marchandises 
provenant  des  treize  Etats  Unis ; 
sa  Majeste  conservera  d'un  autre 
cote,  aux  sujets  des  dits  Etats,  les 
ports  Francs  qui  ont  ete,  et  sont 
ouverts  dans  les  isles  Frangoises 
de  I'Axnerique.  De  tous  les  quels 
ports  Francs  les  dits  sujets  des 
Etats  Unis  jouiront  conformement 
aux  reglemens  qui  en  determinent 
I'usasfe. 


Article  XXXI 

The  present  treaty  shall  be  rati- 
fied on  both  sides,  and  the  ratifica- 
tions shall  be  exchanged  in  the 
space  of  six  months,  or  sooner  if 
possible. 

In  faith  whereof  the  respective 
Plenipotentiaries  have  signed  the 
above  articles,  both  in  the  French 
and  English  languages,  declaring, 
nevertheless,  that  the  present 
treaty  was  originally  composed 
and  concluded  in  the  French  lan- 
guage, and  they  have  thereto 
affixed  their  seals. 

Done  at  Paris  this  sixth  day  of 
February,  one  thousand  seven 
hundred  and  seventy-eight. 

C.  A.  Gerard,  [l.  s.] 
B.  Franklin,  [l.  s.] 
Silas  Deane,  [l.  s.] 
Arthur  Lee.     [l.  s.] 


Article  XXXI 

Le  present  traite  sera  ratifie  de 
part  et  d'autre,  et  les  ratifications 
seront  echangees  dans  I'espace  de 
six  mois  ou  plustot  si  faire  se  pent. 

In  foi  de  quoi  les  Plenipoten- 
tiaires  respectif  s  ont  signe  les  arti- 
cles ci-dessus,  tant  en  langue 
Frangoise  qu'en  langue  Angloise, 
declarant  neanmoins  que  le  pre- 
sent traite  a  ete  originairement 
redige  et  arrete  en  langue  Fran- 
goise ;  et  ils  y  ont  appose  le  cachet 
de  leurs  armes. 

Fait  a  Paris,  le  sixieme  jour  du 
mois  de  Fevrier,  mil  sept  cent 
soixante  dix-huit. 

C.  A.  Gerard,  [l.  s.] 
B.  Franklin,  [l.  s.] 
Silas  Deane,  [l.  s.] 
Arthur  Lee.     [l.  s.] 


466   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 

Treaty  of  Alliance,  February  6,  1778^ 

Concluded  February  6,   i//8;  Ratified  by   the  Continental  Congress 
May  4,  1778 ;  Ratifications  exchanged  at  Paris  July  17,  1778 

The  Most  Christian  King  and  Le  Roi  tres  Chretien  et  les  Etats 
the  United  States  of  North  Amer-  Unis  de  I'Amerique  Septentrio- 
ica,  to  wit :  New  Hampshire,  nale,  f avoir,  New-Hampshire,  la 
Massachusetts  Bay,  Rhode  Island,  Baye  de  Massachuset,  Rhode- 
Connecticut,  New  York,  New  Island,  Connecticut,  New- York, 
Jersey,  Pennsylvania,  Delaware,  New-Jersey,  Pensylvania,  Dela- 
Maryland,  Virginia,  North  Caro-  ware,  Maryland,  Virginie,  Caro- 
lina, South  Carolina,  and  Georgia,  line  Septentrionale,  Caroline  Me- 
having  this  day  concluded  a  treaty  ridionale,  et  Georgia ;  ayant  con- 
of  amity  and  commerce,  for  the  clu  ce  jourd'huy  un  traite  d'amitie, 
reciprocal  advantage  of  their  sub-  de  bonne  intelligence  et  de  com- 
jects  and  citizens,  have  thought  it  merce,  pour  I'avantage  reciproque 
necessary  to  take  into  consider-  de  leurs  sujets  et  citoyens,  ils  ont 
ation  the  means  of  strengthening  cru  devoir  prendre  en  considera- 
those  engagements,  and  of  render-  tion,  les  moyens  de  refferrer  leurs 
ing  them  useful  to  the  safety  and  liaisons,  et  de  les  rendre  utiles  a 
tranquillity  of  the  two  parties ;  la  surete  et  a  la  tranquilite  des 
particularly  in  case  Great  Britain,  deux  parties,  notament  dans  le  cas 
in  resentment  of  that  connection  ou  la  Grande  Bretagne,  en  haine 
and  of  the  good  correspondence  de  ces  memes  liaisons  et  de  la 
which  is  the  object  of  the  said  bonne  correspondance  qui  forment 
treaty,  should  break  the  peace  I'objet  du  dit  traite,  se  porteroit 
with  France,  either  by  direct  hos-  a  rompre  la  paix  avec  la  France, 
tilities,  or  by  hindering  her  com-  soit  en  I'attaquant  hostilement, 
merce  and  navigation  in  a  manner  soit  en  troublant  son  commerce, 
contrary  to  the  rights  of  nations,  et  sa  navigation,  d'une  maniere 
and  the  peace  subsisting  between  contraire  au  droit  des  gens  et  a 
the  two  Crowns.  And  His  Maj-  la  paix  subsistante  entre  les  deux 
esty  and  the  said  United  States,  couronnes :  Et  sa  Majeste  et  les 
having  resolved  in  that  case  to  dits  Etats  Unis  ayant  resolu  even- 
join  their  councels  and  efforts  tuellement  d'unir,  dans  le  cas  pre- 
against  the  enterprises  of  their  vij,  leurs  conseils  et  leurs  efforts 
common    enemy,    the    respective  contre  les  entreprises  de  leur  en- 


1  8  Stat.  L.  6 ;  18  Stat.  L.  pt.  2,  p.  201 ;  Treaties  and  Conventions,  1889,  p.  307. 


TREATY  OF  ALLIANCE,  1778 


467 


Plenipotentiaries  impowered  to 
concert  the  clauses  and  conditions 
proper  to  fulfil  the  said  intentions, 
have,  after  the  most  mature  de- 
liberation, concluded  and  deter- 
mined on  the  following  articles : 


nemi  commun,  les  plenipoten- 
tiaires  respectifs,  charges  de  con- 
certer  les  clauses  et  conditions 
propres  a  remplir  leurs  intentions, 
ont,  apres  la  plus  mure  delibera- 
tion conclu  et  arreste  les  points  et 
articles  qui  s'ensuivent. 


Article  I 

If  war  should  break  out  be- 
tween France  and  Great  Britain 
during  the  continuance  of  the 
present  war  between  the  United 
States  and  England,  His  Majesty 
and  the  said  United  States  shall 
make  it  a  common  cause  and  aid 
each  other  mutually  with  their 
good  offices,  their  counsels  and 
their  forces,  according  to  the  exi- 
gence of  conjunctures,  as  becomes 
good  and  faithful  allies. 

Article  II 

The  essential  and  direct  end  of 
the  present  defensive  alliance  is 
to  maintain  effectually  the  liberty, 
sovereigntys.  and  independance 
absolute  and  unlimited,  of  the  said 
United  States,  as  well  in  matters 
of  government  as  of  commerce. 

Article  III 


Article  I 

Si  la  guerre  eclate  entre  la 
France  et  la  Grande  Bretagne, 
pendant  la  duree  de  la  guerre  ac- 
tuelle  entre  les  Etats  Unis  et 
I'Angleterre,  sa  Majeste  et  les  dits 
Etats  Unis  seront  cause  com- 
mune et  s'entr'aideront  mutuelle- 
ment  de  leurs  bons  offices,  de 
leurs  conseils  et  de  leurs  forces, 
selon  I'exigence  des  conjonctures, 
ainsy  qu'il  convient  a  de  bons  et 
fideles  allies. 

Article  II 

Le  but  essentiel  et  direct  de  la 
presente  alliance  deffensive,  est  de 
maintenir  efficacement  la  liberie, 
la  souverainete,  et  I'independance 
absolue  et  illimitee  des  dits  Etats 
Unis,  tant  en  matiere  politique 
que  de  commerce. 

Article  III 


The     two     contracting     parties  Les  deux  parties  contractantes 

shall  each  on  its  own  part,  and  in  feront  chacune  de  leur  cote,  et  de 

the    manner    it    may   judge    most  la  maniere  qu'elles  jugeront  plus 

proper,  make  all  the  efforts  in  its  convenable,   tous    les   efforts,   qui 

power  against  their  common  ene-  seront    en    leur    pouvoir,    contre 


468   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


my,  in  order  to  attain  the  end  pro- 
posed. 

Article  IV 

The  contracting  parties  agree 
that  in  case  either  of  them  should 
form  any  particular  enterprise  in 
which  the  concurrence  of  the 
other  may  be  desired,  the  party 
whose  concurrence  is  desired, 
shall  readily,  and  with  good  faith, 
join  to  act  in  concert  for  that  pur- 
pose, as  far  as  circumstances  and 
its  own  particular  situation  will 
permit ;  and  in  that  case,  they 
shall  regulate,  by  a  particular  con- 
vention, the  quantity  and  kind  of 
succour  to  be  furnished,  and  the 
time  and  manner  of  its  being 
brought  into  action,  as  well  as  the 
advantages  which  are  to  be  its 
compensation. 

Article  V 

If  the  United  States  should 
think  fit  to  attempt  the  reduction 
of  the  British  power,  remaining 
in  the  northern  parts  of  America, 
or  the  islands  of  Bermudas,  those 
countries  or  islands,  in  case  of 
success,  shall  be  confederated  with 
or  dependant  upon  the  said  Uni- 
ted States. 

Article  VI 

The  Most  Christian  King  re- 
nounces forever  the  possession  of 
the  islands  of  Bermudas,  as  well 
as  of  any  part  of  the  continent  of 


leur  ennemi  commun,  afin  d'at- 
teindre  au  but  qu'elles  se  propo- 
sent. 

Article  IV 

Les  parties  contractantes  sont 
convenues  que  dans  le  cas  ou 
I'une  d'entre  elles  formeroit  quel- 
qu'  entreprise  particuliere,  pour 
laquelle  elle  desireroit  le  con- 
cours  de  I'autre,  celle-ci,  se  pre- 
teroit  de  bonne  foi  a  un  concert 
sur  cet  objet,  autant  que  les  cir- 
constances  et  sa  propre  situation 
pourront  le  lui  permettre,  et  dans 
ce  cas,  on  reglera,  par  une  con- 
vention particuliere,  la  portee  des 
secours  a  fournir,  et  le  tems  et  la 
maniere  de  le  faire  agir,  ainsy 
que  les  avantages  destines  a  en 
former  la  compensation. 


Article  V 

Si  les  Etats  Unis  jugent  a  pro- 
pos  de  tenter  la  reduction  des  isles 
Bermudes  et  des  parties  septen- 
trionales  de  I'Amerique,  qui  sont 
encore  avi  pouvoir  de  la  Grande 
Bretagne,  les  dites  isles  et  con- 
trees,  en  cas  de  succes,  entreront 
dans  la  confederation  ou  seront 
dependantes  des  dits  Etats  Unis. 

Article  VI 

Le  Roi  tres  Chretien  renonce  a 
posseder  jamais  les  Bermudes,  ni 
aucune  des  parties  du  continent 
de  I'Amerique  septentrionale,  qui, 


TREATY  OF  ALLIANCE,  1778 


469 


North  America,  which  before  the 
treaty  of  Paris  in  1763,  or  in  vir- 
tue of  that  treaty,  were  acknowl- 
edged to  belong  to  the  Crown  of 
Great  Britain,  or  to  the  United 
States,  heretofore  called  British 
Colonies,  or  which  are  at  this 
time,  or  have  lately  been  under 
the  power  of  the  King  and  Crown 
of  Great  Britain. 

Article  VII 

If  His  Most  Christian  Majesty 
shall  think  proper  to  attack  any 
of  the  islands  situated  in  the 
Gulph  of  Mexico,  or  near  that 
Gulph,  which  are  at  present  under 
the  power  of  Great  Britain,  all 
the  said  isles,  in  case  of  success, 
shall  appertain  to  the  Crown  of 
France. 

Article  VIII 

Neither  of  the  two  parties  shall 
conclude  either  truce  or  peace 
with  Great  Britain  without  the 
formal  consent  of  the  other  first 
obtained ;  and  they  mutually  en- 
gage not  to  lay  down  their  arms 
until  the  independence  of  the 
United  States  shall  have  been  for- 
mally or  tacitly  assured  by  the 
treaty  or  treaties  that  shall  ter- 
minate the  war. 


avant  le  traite  de  Paris  de  mil 
sept  cent  soixante  trois,  ou  en 
vertu  de  ce  traite,  ont  ete  recon- 
nues  appartenir  a  la  couronne  de 
la  Grande  Bretagne,  ou  aux  Etats 
Unis,  qu'on  appelloit  ci-devant 
colonies  Britanniques,  ou  qui  sont 
maintenant,  ou  ont  ete  recemment 
sous  la  jurisdiction  et  sous  le 
pouvoir  de  la  couronne  de  la 
Grande  Bretagne. 

Article  VII 

Si  sa  Majeste  tres  Chretienne 
juge  a  propos  d'attaquer  aucune 
des  isles  situees  dans  le  golphe  de 
Mexique  ou  pres  du  dit  golphe, 
qui  sont  actuellement  au  pouvoir 
de  la  Grande  Bretagne,  toutes  les 
dites  isles,  en  cas  de  succes,  ap- 
partiendront  k  la  couronne  de 
France. 

Article  VIII 

Aucune  des  deux  parties  ne 
pourra  conclure  ni  treve  ni  paix 
avec  la  Grande  Bretagne,  sans  le 
consentement  prealable  et  formel 
de  I'autre  partie,  et  elles  s'en- 
gagent  mutuellement  a  ne  mettre 
bas  les  armes,  que  lorsque  I'in- 
dependance  des  dits  Etats  Unis 
aura  ete  assuree  formellement  ou 
tacitement  par  le  traite  ou  les 
traites  qui  termineront  la  guerre. 


Article  IX 


Article  IX 


The  contracting  parties  declare.  Les    parties    contractantes    de- 

that  being  resolved  to  fulfil  each      clarent,  qu'etant  resolues  de  rem- 


470   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


on  its  own  part  the  clauses  and 
conditions  of  the  present  treaty  of 
alliance,  according  to  its  own 
power  and  circumstances,  there 
shall  be  no  after  claim  of  compen- 
sation on  one  side  or  the  other, 
whatever  may  be  the  event  of  the 
war. 

Article  X 

The  Most  Christian  King  and 
the  United  States  agree  to  invite 
or  admit  other  powers  who  may 
have  received  injuries  from  Eng- 
land, to  make  common  cause  with 
them,  and  to  accede  to  the  present 
alliance,  under  such  conditions  as 
shall  be  freely  agreed  to  and  set- 
tled between  all  the  parties. 


Article  XI 

The  two  parties  guarantee  mu- 
tually from  the  present  time  and 
forever  against  all  other  powers, 
to  wit :  The  United  States  to  His 
Most  Christian  Majesty,  the  pres- 
ent possessions  of  the  Crown  of 
France  in  America,  as  well  as 
those  which  it  may  acquire  by  the 
future  treaty  of  peace :  And  His 
Most  Christian  Majesty  guaran- 
tees on  his  part  to  the  United 
States  their  liberty,  sovereignty 
and  independence,  absolute  and 
unlimited,  as  well  in  matters  of 
government  as  commerce,  and 
also  their  possessions,  and  the  ad- 


plir  chacune  de  son  cote  les  clau- 
ses et  conditions  du  present 
traite  d'alliance  selon  son  pouvoir 
et  les  circonstances,  elles  n'auront 
aucune  repetition,  ni  aucun  de- 
dommagement,  a  se  demander  re- 
ciproquement,  quelque  puisse  etre 
I'evenement  de  la  guerre. 

Article  X 

Le  Roi  tres  Chretien  et  les 
Etats  Unis  sont  convenus  d'in- 
viter  de  concert  ou  d'admettre 
les  puissances,  qui  auront  des 
griefs  contre  I'Angleterre,  a  faire 
cause  commune  avec  eux,  et  a 
acceder  a  la  presente  alliance, 
sous  les  conditions  qui  seront 
librement  agrees  et  convenues 
entre  toutes  les  parties. 

Article  XI 

Les  deux  parties  se  garantis- 
sent  mutuellement  des  a  present 
et  pour  toujours  envers  et  contre 
tous,  savoir,  les  Etats  Unis  a  sa 
Majeste  tres  Chretienne  les  pos- 
sessions actuelles  de  la  couronne 
de  France  en  Amerique,  ainsy 
que  celles  qu'elle  pourra  acquerir 
par  le  futur  traite  de  paix;  Et  sa 
Majeste  tres  Chretienne,  garantit 
de  son  cote  aux  Etats  Unis  leur 
liberte,  leur  souverainete  et  leur 
independance  absolue  et  illimitee, 
tant  en  matiere  de  politique  que 
de  commerce,  ainsy  que  leurs  pos- 
sessions et  les  accroissements  ou 


TREATY  OF  ALLIANCE,  1778 


471 


ditions  or  conquests  that  their 
confederation  may  obtain  during 
the  war,  from  any  of  the  domin- 
ions now,  or  heretofore  possessed 
by  Great  Britain  in  North  Amer- 
ica, conformable  to  the  5th  and 
6th  articles  above  written,  the 
whole  as  their  possessions  shall 
be  fixed  and  assured  to  the  said 
States,  at  the  moment  of  the  ces- 
sation of  their  present  war  with 
England. 


conquetes  que  leur  confederation 
pourra  se  procurer  pendant  la 
guerre,  d'aucun  des  domaines 
maintenant  ou  ci-devant  possedes 
par  la  Grande  Bretagne  dans 
I'Amerique  septentrionale,  con- 
f  ormement  aux  articles  cinq  et  six 
ci-dessus,  et  tout  ainsy  que  leurs 
possessions  seront  fixees  et  assu- 
rees  aux  dits  Etats,  au  moment  de 
la  cessation  de  leur  guerre  actuelle 
contre  I'Angleterre. 


Article  XII 

In  order  to  fix  more  precisely 
the  sense  and  application  of  the 
preceding  article,  the  contracting 
parties  declare,  that  in  case  of  a 
rupture  between  France  and  Eng- 
land the  reciprocal  guarantee  de- 
clared in  the  said  article  shall  have 
its  full  force  and  eiifect  the  mo- 
ment such  war  shall  break  out ; 
and  if  such  rupture  shall  not  take 
place,  the  mutual  obligations  of 
the  said  guarantee  shall  not  com- 
mence until  the  moment  of  the 
cessation  of  the  present  war  be- 
tween the  United  States  and  Eng- 
land shall  have  ascertained  their 
possessions. 


Article  XII 

Afin  de  fixer  plus  precisement 
le  sens  et  I'application  de  I'article 
precedent,  les  parties  contractan- 
tes  declarent  qu'en  cas  de  rupture 
entre  la  France  et  I'Angleterre,  la 
garantie  reciproque  enoncee  dans 
le  susdit  article,  aura  toute  sa 
force  et  valeur  du  moment  ou 
la  guerre  eclatera,  et  si  la  rupture 
n'avoit  pas  lieu,  les  obligations 
mutuelles  de  la  ditte  garantie,  ne 
commenceroient,  que  du  moment 
susdit,  ou  la  cessation  de  la  guerre 
actuelle  entre  les  Etats  Unis  et 
I'Angleterre  aura  fixe  leurs  pos- 
sessions. 


Article  XIII 

The  present  treaty  shall  be  rati- 
fied on  both  sides,  and  the  ratifi- 
cations shall  be  exchanged  in  the 
space  of  six  months,  or  sooner  if 
possible. 


Article  XIII 

Le  present  traite  sera  ratiffie 
de  part  et  d'autre  et  les  ratifiica- 
tions  seront  echangees  dans  I'es- 
pace  de  six  mois  ou  plustot  si 
faire  se  pent. 


472   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


In  faith  whereof  the  respective 
Plenipotentiaries,  to  wit:  On  the 
part  of  the  Most  Christian  King, 
Conrad  Alexander  Gerard,  Royal 
Syndic  of  the  city  of  Strasbourgh, 
and  Secretary  of  his  Majesty's 
Council  of  State ;  and  on  the  part 
of  the  United  States,  Benjamin 
Franklin,  Deputy  to  the  General 
Congress  from  the  State  of  Penn- 
sylvania, and  President  of  the 
Convention  of  the  same  State, 
Silas  Deane,  heretofore  Deputy 
from  the  State  of  Connecticut, 
and  Arthur  Lee,  Councellor  at 
Law,  have  signed  the  above  arti- 
cles both  in  the  French  and  Eng- 
lish languages,  declaring,  never- 
theless, that  the  present  treaty 
was  originally  composed  and  con- 
cluded in  the  French  language, 
and  they  have  hereunto  affixed 
their  seals. 

Done  at  Paris,  this  sixth  day  of 
February,  one  thousand  seven 
hundred  and  seventy-eight. 

C.  A.  Gerard,  [l.  s.] 
B.  Franklin,  [l.  s.] 
Silas  Deane,  [l.  s.] 
Arthur  Lee.     [l.  s.] 


En  foi  de  quoi  les  plenipoten- 
tiaires  respectifs,  savoir,  de  la 
part  du  Roi  tres  Chretien  le  S"". 
Conrad,  Alexandre  Gerard,  Sin- 
die  Royal  de  la  Ville  de  Stras- 
bourg et  Secretaire  du  Conseil 
d'Etat  de  sa  Majeste,  et  de  la  part 
des  Etats  Unis  les  S"^.  Benjamin 
Franklin,  Depute  au  Congres  Ge- 
neral de  la  part  de  I'etat  de  Pen- 
sylvanie  et  President  de  la  Con- 
vention du  meme  etat ;  Siles 
Deane  cy-devant  Depute  de  I'etat 
de  Connecticut,  et  Arthur  Lee 
Conseiller  es  Loix,  ont  signe  les 
articles  ci-dessus,  tant  en  langue 
Frangoise  qu'en  langue  Angloise, 
declarant  neanmoins,  que  le  pre- 
sent traite,  a  ete  originairement 
redige  et  arrete  en  langue  Fran- 
Qoise,  et  ils  les  ont  munis  du  ca- 
chet de  leurs  armes. 

Fait  a  Paris,  le  sixieme  jour  du 
mois  de  Fevrier,  mil  sept  cent 
soixante  dix-huit. 

C.  A.  Gerard,  [l.  s.] 
B.  Franklin,  [l.  s.] 
Silas  Deane,  [l,  s.] 
Arthur  Lee.     [l.  s.] 


CONSULAR  CONVENTION  OF  1788 


473 


Convention  Defining  and  Establishing  the  Functions  and  Privileges 
of  Consuls  and  Vice-Consuls^ 

Concluded  November  14,  1788;  Ratifications  exchanged  at  Paris  Jan- 
uary 6,  1790;  although  the  certificate  of  exchange  was  dated 
January  i,  1790 


His  Majesty  the  Most  Chris- 
tian King,  and  the  United  States 
of  America,  having,  by  the  twen- 
ty-ninth article  of  the  treaty  of 
amity  and  commerce  concluded 
between  them,  mutually  granted 
the  liberty  of  having  in  their  re- 
spective States  and  ports,  Consuls, 
Vice-Consuls,  agents  and  com- 
missaries, and  being  willing,  in 
consequence  thereof,  to  define  and 
establish,  in  a  reciprocal  and  per- 
manent manner,  the  functions  and 
privileges  of  Consuls  and  Vice- 
Consuls,  which  they  have  judged 
it  convenient  to  establish  of  pref- 
erence. His  Most  Christian  Maj- 
esty has  nominated  the  Sieur 
Count  of  Montmorin,  of  St. 
Herent,  Marechal  of  his  Camps 
and  Armies,  Knight  of  his  Orders 
and  of  the  Golden  Fleece,  his 
Counsellor  in  all  his  Councils, 
Minister  and  Secretary  of  State, 
and  of  his  Commandments  and 
Finances,  having  the  Department 
of  Foreign  Affairs ;  and  the 
United  States  have  nominated  the 
Sieur  Thomas  Jefferson,  citizen 
of  the  United  States  of  America, 
and  their  Minister  Plenipotentiary 
near  the  King ;  who.  after  having 


Sa  Majeste  le  Roi  tres  Chre- 
tien, et  les  Etats  Unis  de  I'Ame- 
rique,  s'etant  accordes  mutuelle- 
ment  par  I'art.  XXIX,  du  traite 
d'amitie  et  de  commerce  conclu 
entr'eux,  la  liberte  de  tenir  dans 
leurs  Etats  et  ports  respectifs,  des 
consuls,  et  vice-consuls,  agens  et 
commissaires,  et  voulant  en  con- 
sequence determiner  et  fixer 
d'une  maniere  reciproque  et  per- 
manente,  les  fonctions  et  preroga- 
tives des  consuls,  et  vice-consuls 
qu'ils  ont  juge  convenable  d'eta- 
blir  de  preference,  sa  Majeste 
tres  Chretienne  a  nomme  le  Sieur 
Comte  de  Montmorin  de  St.  He- 
rent,  marechal  de  ses  camps  et 
armees,  chevalier  de  ses  ordres  et 
de  la  toison-d'or,  son  conseiller  en 
tons  ses  conseils.  ministre  et 
secretaire  d'etat  et  de  ses  com- 
mandements  et  finances,  ai'ant  le 
departement  des  affaires  etran- 
geres ;  et  les  Etats  Unis  ont  nom- 
me le  Sieur  Thomas  Jefferson, 
citoyen  des  Etats  Unis  de  I'Ame- 
rique,  et  leur  ministre  plenipoten- 
tiaire  aupres  du  Roi,  lesquels, 
apres  s'etre  communique  leurs 
plein-pouvoirs  respectifs  sont  con- 
venus  de  cc  qui  suit. 


1  8  Stat.  L.  106;  18  Stat.  L.,  pt.  2.  p.  219;  Treaties  and  Conventions,  1889,  p.  316. 


474   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 

communicated  to  each  other  their 
respective  full  powers,  have 
aefreed  on  what  follows : 


Article  I 

The  Consuls  and  Vice-Consuls 
named  by  the  Most  Christian 
King  and  the  United  States  shall 
be  bound  to  present  their  commis- 
sions according  to  the  forms 
which  shall  be  established  respec- 
tively by  the  Most  Christian  King 
within  his  dominions,  and  by  the 
Congress  within  the  United 
States.  There  shall  be  delivered 
to  them,  without  any  charges,  the 
exequatur  necessary  for  the  exer- 
cise of  their  functions  ;  and  on  ex- 
hibiting the  said  exequatur,  the 
governors,  commanders,  heads 
of  justice,  bodies  corporate,  tri- 
bunals and  other  officers  having 
authority  in  the  ports  and  places 
of  their  consulates,  shall  cause 
them  to  enjoy  immediately,  and 
without  difficulty,  the  pre-emi- 
nences, authority,  and  privileges 
reciprocally  granted,  without  ex- 
acting from  the  said  Consuls  and 
Vice-Consuls  any  fee,  under  any 
pretext  whatever. 

Article  II 

The  Consuls  and  Vice-Consuls, 
and  persons  attached  to  their 
functions ;  that  is  to  say,  their 
Chancellors  and  Secretaries, 
shall  enjoy  a  full  and  entire  im- 
munity   for    their    chancery,    and 


Article  I 

Les  consuls  et  vice-consuls 
nommes  par  le  Roi  tres  Chretien 
et  les  Etats  Unis  seront  tenus  de 
presenter  leurs  provisions  selon  la 
forme  qui  se  trouvera  etablie  res- 
pectivement  par  le  Roi  tres  Chre- 
tien dans  ses  Etats,  et  par  le 
Congres  dans  les  Etats  Unis.  On 
leur  delivrera  sans  aucuns  fraix 
Vexequatur  necessaire  a  Texercice 
de  leurs  fonctions,  et  sur  I'exhibi- 
tion  qu'ils  feront  du  dit  exequa- 
tur, les  gouverneurs,  comman- 
dants, chefs  de  justice,  les  corps, 
tribunaux  ou  autres  officiers  a'iant 
autorite  dans  les  ports  et  lieux 
de  leurs  consulats,  les  y  feront 
joui'r  aussitot  et  sans  difficulte  des 
preeminences,  autorite  et  privi- 
leges accordes  reciproquement. 
sans  qu'ils  puissent  exiger  des  dits 
consuls  et  vice-consuls  aucun 
droit  sous  aucun  pretexte  quel- 
conque. 


Article  II 

Les  consuls  et  vice-consuls  et 
les  personnes  attachees  a  leurs 
fonctions,  savoir,  leurs  chance- 
liers  et  secretaires,  jouiront  d'une 
pleine  et  entiere  immunite  pour 
leur  chancellerie  et  les  papiers  qui 


CONSULAR  CONVENTION  OF  1788 


475 


the  papers  which  shall  be  therein 
contained.  They  shall  be  exempt 
from  all  personal  service,  from 
soldiers'  billets,  militia,  watch, 
guard,  guardianship,  trusteeship, 
as  well  as  from  all  duties,  taxes, 
impositions  and  charges  whatso- 
ever, except  on  the  estate  real  and 
personal  of  which  they  may  be 
the  proprietors  or  possessors, 
which  shall  be  subject  to  the  taxes 
imposed  on  the  estates  of  all  other 
individuals :  And  in  all  other  in- 
stances they  shall  be  subject  to 
the  laws  of  the  land  as  the  natives 
are.  Those  of  the  said  Consuls 
and  Vice-Consuls  who  shall  exer- 
cise commerce,  shall  be  respec- 
tively subject  to  all  taxes,  charges 
and  impositions  established  on 
other  merchants.  They  shall  place 
over  the  outward  door  of  their 
house  the  arms  of  their  sovereign  ; 
but  this  mark  of  indication  shall 
not  give  to  the  said  house  any 
privilege  of  asylum  for  any  per- 
son  or   property    whatsoever. 


y  seront  renfermes.  lis  seront 
exemts  de  tout  service  personnel, 
logement  des  gens  de  guerre,  mi- 
lice,  guet,  garde,  tutelle,  curatelle, 
ainsi  que  de  tous  droits,  taxes,  im- 
positions et  charges  quelconques, 
a  I'exception  seulement  des  biens 
meubles  et  immeubles  dont  ils 
seroient  proprietaires  ou  posses- 
seurs,  lesquels  seront  assujettis 
aux  taxes  imposees  sur  ceux  de 
tous  autres  particuliers,  et  a  tous 
egards  ils  demeureront  sujets  aux 
loix  du  pais  comme  les  nationaux. 
Ceux  des  dits  consuls  et  vice- 
consuls  qui  feront  le  commerce 
seront  respectivement  assujettis 
a  toutes  les  taxes,  charges  et  im- 
positions etablies  sur  les  autres 
negociants.  Ils  placeront  sur  la 
porte  exterieure  de  leurs  maisons 
les  armes  de  leur  souverain,  sans 
que  cette  marque  distinctive 
puisse  donner  aux  dites  maisons 
le  droit  d'asile,  soit  pour  des  per- 
sonnes.  soit  pour  des  effets  quel- 
conques. 


Article  III 

The  respective  Consuls  and 
Vice-Consuls  may  establish  agents 
in  the  different  ports  and  places 
of  their  departments  where  neces- 
sity shall  require.  These  agents 
may  be  chosen  among  the  mer- 
chants, either  national  or  foreign, 
and  furnished  with  a  commission 
from  one  of  the  said  Consuls : 
They  shall  confine  themselves  re- 


Article  ITT 

Les  consuls  et  vice-consuls  res- 
pectifs  pourront  etablir  des  agens 
dans  les  differens  ports  et  lieux 
de  leurs  departements  ou  le  besoin 
I'exigera ;  ces  agens  pourront  etre 
choisis  parmi  les  negociants  na- 
tionaux ou  etrangers,  et  munis  de 
la  commission  de  I'un  des  dits 
consuls.  Ils  se  renfermeront  res- 
pectivement   a    rendre    aux    com- 


476   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


spectively  to  the  rendering  to 
their  respective  merchants,  navi- 
gators, and  vessels,  all  possible 
service,  and  to  inform  the  nearest 
Consul  of  the  wants  of  the  said 
merchants,  navigators  and  vessels, 
without  the  said  agents  otherwise 
participating  in  the  immunities, 
rights  and  privileges  attributed  to 
Consuls  and  Vice-Consuls,  and 
without  power,  under  any  pretext 
whatever,  to  exact  from  the  said 
merchants  any  duty  or  emolument 
whatsoever. 

Article  IV 

The  Consuls  and  Vice-Consuls 
respectively  may  establish  a  chan- 
cery, where  shall  be  deposited  the 
consular  determinations,  acts  and 
proceedings,  as  also  testaments, 
obligations,  contracts  and  other 
acts  done  by  or  between  persons 
of  their  nation,  and  effects  left 
by  deceased  persons,  or  saved 
from  shipwreck.  They  may  con- 
sequently appoint  fit  persons  to 
act  in  the  said  chancery,  receive 
and  swear  them  in,  commit  to 
them  the  custody  of  the  seal,  and 
authority  to  seal  commissions, 
sentences  and  other  consular  acts, 
and  also  to  discharge  the  func- 
tions of  notarv^  and  register  of  the 
consulate. 


mergants,  navigateurs  et  bati- 
ments  respectifs,  tous  les  services 
possibles,  et  a  informer  le  cor>sul 
le  plus  proche  des  besoins  des  dits 
commergants,  navigateurs  et  bati- 
ments,  sans  que  les  dits  agens 
puissent  autrement  participer  aux 
immunites,  droits  et  privileges  at- 
tribues  aux  consuls  et  vice-con- 
suls, et  sans  pouvoir  sous  aucun 
pretexte  que  ce  soit,  exiger  aucun 
droit  ou  emolument  quelconque 
des  dits  commergants. 

Article  IV 

Les  consuls  et  vice-consuls  res- 
pectifs pourront  etablir  une  chan- 
cellerie  ou  seront  deposes  les  de- 
liberations, actes  et  procedures 
consulaires,  ainsi  que  les  testa- 
ments, obligations,  contrats,  et 
autres  actes  faits  par  les  natio- 
naux  ou  entr'eux,  et  les  effets  de- 
laisses  par  mort,  ou  sauves  des 
nauf  rages.  lis  pourront  en  conse- 
quence commettre  a  I'exercice  de 
la  dite  chancellerie  des  personnes 
capables,  les  recevoir,  leur  faire 
preter  serment,  leur  donner  la 
garde  du  sceau  et  le  droit  de 
sceller  les  commissions,  juge- 
ments  et  autres  actes  consulaires, 
ainsi  que  d'y  remplir  les  fonctions 
de  notaire  et  greffiers  du  consulat. 


Article  V 

The  Consuls  and  Vice-Consuls 
respectively  shall  have  the  exclu- 


Article  V 

Les  consuls  et  vice-consuls  res- 
pectifs auront  le  droit  exclusif  de 


CONSULAR  CONVENTION  OF  1788 


477 


sive  right  of  receiving  in  their 
chancery,  or  on  board  of  vessels, 
the  declarations  and  all  other  the 
acts  which  the  captains,  masters, 
crews,  passengers,  and  merchants 
of  their  nation  may  chuse  to  make 
there,  even  their  testaments  and 
other  disposals  by  last  will:  And 
the  copies  of  the  said  acts,  duly 
authenticated  by  the  said  Consuls 
or  Vice-Consuls,  under  the  seal 
of  their  consulate,  shall  receive 
faith  in  law,  equally  as  their  orig- 
inals would,  in  all  the  tribunals  of 
the  dominions  of  the  Most  Chris- 
tian King  and  of  the  United 
States.  They  shall  also  have,  and 
exclusively,  in  case  of  the  absence 
of  the  testamentary  executor,  ad- 
ministrator, or  legal  heir,  the  right 
to  inventory,  liquidate,  and  pro- 
ceed to  the  sale  of  the  personal 
estate  left  by  subjects  or  citizens 
of  their  nation  who  shall  die 
within  the  extent  of  their  consul- 
ate ;  they  shall  proceed  therein 
with  the  assistance  of  two  mer- 
chants of  their  said  nation,  or.  for 
want  of  them,  of  any  other  at 
their  choice,  and  shall  cause  to  be 
deposited  in  their  chancery  the  ef- 
fects and  papers  of  the  said  es- 
tates ;  and  no  officer,  military, 
judiciary,  or  of  the  police  of  the 
country,  shall  disturb  them  or  in- 
terfere therein,  in  any  manner 
whatsoever:  But  the  said  Consuls 
and  Vice-Consuls  shall  not  deliver 
up  the  said  eflfects,  nor  the  pro- 


recevoir  dans  leur  chancellerie,  ou 
a  bord  des  batiments,  les  declara- 
tions et  tons  les  autres  actes  que 
les  capitaines,  patrons,  equipages, 
passagers,  et  negociants  de  leur 
nation  voudront  y  passer,  meme 
leur  testament  et  autres  disposi- 
tions de  derniere  volonte,  et  les 
dispositions  des  dits  actes  due- 
ment  legalises  par  les  dits  consuls 
ou  vice-consuls,  et  munis  du  sceau 
de  leur  consulat,  feront  foi  en  jus- 
tice comme  le  feroient  les  origi- 
naux  dans  tous  es  tribunaux  des 
etats  du  Roi  tres  Chretien  et  des 
Etats  Unis.  lis  auront  aussi,  et 
exclusivement,  en  cas  d'absence 
d'executeur  testamentaire,  cura- 
teur  ou  heritiers  legitimes,  le  droit 
de  faire  I'inventaire,  la  liquidation 
et  de  proceder  a  la  vente  des  effets 
mobiliers  de  la  succession  des  su- 
jets  ou  citoyens  de  leur  nation, 
qui  viendront  a  mourir  dans 
I'etendue  de  leur  consulat.  lis  y 
procederont  avec  I'assistance  de 
deux  negocians  de  leur  dite  na- 
tion, ou  a  leur  defaut,  de  tout 
autre  a  leur  choix,  et  feront  de- 
poser  dans  leur  chancellerie  les 
effets  et  papiers  des  dites  succes- 
sions, sans  qu'aucuns  officiers 
militaires.  de  justice,  ou  de  police 
du  pais,  puissent  les  y  troubler.  ni 
y  intervenir  de  quelque  maniere 
que  ce  soit :  mais  les  dits  consuls 
et  vice-consuls  ne  pourront  faire 
la  deliverance  des  successions  et 
de  leur  produit  aux  heritiers  legi- 


478   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


ceeds  thereof,  to  the  lawful  heirs, 
or  to  their  order,  till  they  shall 
have  caused  to  be  paid  all  debts 
which  the  deceased  shall  have 
contracted  in  the  country ;  for 
which  purpose  the  creditors  shall 
have  a  right  to  attach  the  said  ef- 
fects in  their  hands,  as  they  might 
in  those  of  any  other  individual 
whatever,  and  proceed  to  obtain 
sale  of  them  till  payment  of  what 
shall  be  lawfully  due  to  them. 
When  the  debts  shall  not  have 
been  contracted  by  judgment,  deed 
or  note,  the  signature  whereof 
shall  be  known,  payment  shall  not 
be  ordered  but  on  the  creditor's 
giving  sufficient  surety,  resident 
in  the  country,  to  refund  the  sums 
he  shall  have  unduly  received, 
principal,  interest  and  cost ;  which 
surety  nevertheless  shall  stand 
duly  discharged,  after  the  term  of 
one  year  in  time  of  peace,  and  of 
two  in  time  of  war,  if  the  demand 
in  discharge  cannot  be  formed 
before  the  end  of  this  term  against 
the  heirs  who  shall  present  them- 
selves. And  in  order  that  the 
heirs  may  not  be  unjustly  kept 
out  of  the  effects  of  the  deceased, 
the  Consuls  and  Vice-Consuls 
shall  notify  his  death  in  some  one 
of  the  gazettes  published  within 
their  consulate,  and  that  they  shall 
retain  the  said  effects  in  their 
hands  four  months  to  answer  all 
demands  which  shall  be  pre- 
sented; and  they  shall  be  bound 


times,  ou  a  leurs  mandataires, 
qu'apres  avoir  fait  aquitter  toutes 
les  dettes  que  les  defunts  auront 
pii  avoir  contractees  dans  le  pais ; 
a  I'effet  de  quoi  les  creanciers 
auront  droit  de  saisir  les  dits  ef- 
fets  dans  leurs  mains,  de  meme 
que  dans  celles  de  tout  autre  in- 
dividu  quelconque,  et  en  pour- 
suivre  la  vente  jusqu'au  paiement 
de  ce  qui  leur  sera  legitimement 
du ;  lorsque  les  dettes  n'auront  ete 
contractees  par  jugement,  par 
acte,  ou  par  billet  dont  la  signa- 
ture sera  reconnue,  le  paiement 
ne  pourra  en  etre  ordonne  qu'en 
fournissant  par  le  creancier  cau- 
tion sufifisante  et  domiciliee  de 
rendre  les  sommes  induement  per- 
cues,  principal,  interets  et  fraix; 
les  quelles  cautions  cependant 
demeureront  duement  dechargees 
apres  une  annee,  en  tems  de  paix, 
et  deux,  en  tems  de  guerre,  si  la 
demande  en  decharge  ne  peut  etre 
formee  avant  ces  delais  contre  les 
heritiers  qui  se  presenteront.  Et 
afin  de  ne  pas  faire  injustement 
attendre  aux  heritiers  les  effets 
du  defunt,  les  consuls  et  vice-con- 
suls feront  annoncer  sa  mort  dans 
quelqu'une  des  gazettes  qui  se 
publient  dans  I'etendue  de  leur 
consulat,  et  qu'ils  retiendront  les 
dits  effets  sous  leurs  mains  pen- 
dant quatre  mois  pour  repondre  a 
toutes  les  demandes  qui  se  pre- 
senteront: et  ils  seront  tenus, 
apres    ce    delai,    de    delivrer    aux 


CONSULAR  CONVENTION  OF  1788 


479 


after  this  delay  to  deliver  to  the 
persons  succeeding  thereto,  what 
shall  be  more  than  sufficient  for 
the  demands  which  shall  have 
been  formed. 


heritiers,  I'excedent  du  montant 
des  demandes  qui  auront  ete 
formees. 


Article  VI 

The  Consuls  and  Vice-Consuls 
respectively  shall  receive  the  dec- 
larations, protests  and  reports  of 
all  captains  and  masters  of  their 
respective  nation  on  account  of 
average  losses  sustained  at  sea ; 
and  these  captains  and  masters 
shall  lodge  in  the  chancery  of  the 
said  Consuls  and  Vice-Consuls 
the  acts  which  they  may  have 
made  in  other  ports  on  account  of 
the  accidents  which  may  have 
happened  to  them  on  their  voyage. 
If  a  subject  of  the  Most  Christian 
King  and  a  citizen  of  the  United 
States,  or  a  foreigner,  are  inter- 
ested in  the  said  cargo,  the  average 
shall  be  settled  by  the  tribunals  of 
the  country,  and  not  by  the  Con- 
suls or  Vice-Consuls ;  but  when 
only  the  subjects  or  citizens  of 
their  own  nation  shall  be  inter- 
ested, the  respective  Consuls  or 
Vice-Consuls  shall  appoint  skillful 
persons  to  settle  the  damages  and 
average. 


Article  VI 

Les  consuls  et  vice-consuls  res- 
pectifs  recevront  les  declarations, 
protestations  et  rapports  de  tons 
capitaines  et  patrons  de  leur  na- 
tion respective,  pour  raison  d'ava- 
ries  essuyees  a  la  mer,  et  ces  capi- 
taines et  patrons  remettront  dans 
la  chancellerie  des  dits  consuls 
et  vice-consuls  les  actes  qu'ils 
auront  faits  dans  d'autres  ports 
pour  les  accidens  qui  leur  seront 
arrives  pendant  leur  voyage.  Si 
un  sujet  du  Roi  tres  Chretien  et 
un  habitant  des  Etats  Unis,  ou  un 
etranger,  sont  interesses  dans  la 
dite  cargaison,  I'avarie  sera  re* 
glee  par  les  tribunaux  du  pais,  et 
non  par  les  consuls  et  vice-con- 
suls ;  mais  lorsqu'il  n'y  aura  d'in- 
teresses  que  les  sujets  ou  citoyens 
de  leur  propre  nation,  les  consuls 
ou  les  vice-consuls  respectifs 
nommeront  des  experts  pour  re- 
gler  les  dommages  et  avaries. 


Article  VTI 

In  cases  where,  by  tempest  or 
other  accident,  French  ships  or 
vessels   shall   be   stranded  on  the 


Article  VTI 

Dans  le  cas  ou,  par  tempete,  ou 
autres  accidents,  des  vaisseaux  ou 
batiments      Franqais      echoueront 


480   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


coasts  of  the  United  States,  and 
ships  or  vessels  of  the  United 
States  shall  be  stranded  on  the 
coasts  of  the  dominions  of  the 
Most  Christian  King,  the  Consul 
or  Vice-Consul  nearest  to  the 
place  of  shipwreck  shall  do  what- 
ever he  may  judge  proper,  as  well 
for  the  purpose  of  saving  the  said 
ship  or  vessel,  its  cargo  and  ap- 
purtenances, as  for  the  storing 
and  the  security  of  the  effects  and 
merchandize  saved.  He  may  take 
an  inventory  of  them,  without  the 
intermeddling  of  any  officers  of 
the  military,  of  the  customs,  of 
justice,  or  of  the  police  of  the 
country,  otherwise  than  to  give 
to  the  Consuls,  Vice-Consuls, 
captain  and  crew  of  the  vessel 
shipwrecked  or  stranded,  all  the 
succour  and  favour  which  they 
shall  ask  of  them,  either  for  the 
expedition  and  security  of  the 
saving,  and  of  the  effects  saved,  or 
to  prevent  all  disturbance.  And 
in  order  to  prevent  all  kinds  of 
dispute  and  discussion  in  the  said 
cases  of  shipwreck,  it  is  agreed 
that  when  there  shall  be  no  Con- 
sul or  Vice-Consul  to  attend  to 
the  saving  of  the  wreck,  or  that 
the  residence  of  the  said  Consul 
or  Vice-Consul  (he  not  being  at 
the  place  of  the  wreck)  shall  be 
more  distant  from  the  said  place 
than  that  of  the  competent  judge 
of  the  country,  the  latter  shall 
immediately  proceed  therein,  with 


sur  les  cotes  des  Etats  Unis,  et 
des  vaisseaux  et  batiments  des 
Etats  Unis  echoiieront  sur  les 
cotes  des  Etats  de  sa  Majeste  tres 
Chretienne,  le  consul  ou  le  vice- 
consul,  le  plus  proche  du  lieu  du 
naufrage,  pourra  faire  tout  ce 
qu'il  jugera  convenable,  tant  pour 
sauver  le  dit  vaisseau  ou  batiment, 
son  chargement  et  apartenances, 
que  pour  le  magazinage  et  la 
surete  des  effets  sauves  et  mar- 
chandises.  II  pourra  en  faire  I'in- 
ventaire,  sans  quaucuns  officiers 
militaires,  des  doiianes,  de  justice 
ou  de  police  du  pais,  puissent  s'y 
immiscer  autrement  que  pour  fa- 
ciliter  aux  consuls  et  vice-consuls, 
capitaine  et  equipage  du  vaisseau 
naufrage,  ou  echoue,  tous  les  se- 
cours  et  faveurs  qu'ils  leur  de- 
manderont,  soit  pour  la  celerite, 
et  la  surete  du  sauvetage  et  des 
effets  sauves,  soit  pour  eviter  tous 
desordres.  Pour  prevenir  meme 
toute  espece  de  conflit  et  de  dis- 
cussion dans  les  dits  cas  de  nau- 
frage, il  a  ete  convenu  que  lors- 
qu'il  ne  se  trouvera  pas  de  consul 
ou  vice-consul  pour  faire  tra- 
vailler  au  sauvetage,  ou  que  la 
residence  du  dit  consul  ou  vice- 
consul,  qui  ne  se  trouvera  pas  sur 
le  lieu  du  naufrage,  sera  plus 
eloignee  du  dit  lieu  que  celle  du 
juge  territorial  competent,  ce  der- 
nier sera  proceder  sur  le  champ 
avec  toute  la  celerite.  la  surete  et 
les  precautions  prescrites  par  les 


CONSULAR  CONVENTION  OF  1788 


481 


all    the    dispatch,    certainty,    and 
precautions  prescribed  by  the  re- 
spective laws;  but  the  said  terri- 
torial judge  shall  retire  on  the  ar- 
rival of  the  Consul  or  Vice-Con- 
sul,  and  shall  deliver  over  to  him 
the  report  of  his  proceedings,  the 
expenses  of  which  the  Consul  or 
Vice-Consul  shall  cause  to  be  re- 
imbursed to  him,  as  well  as  those 
of  saving  the  wreck.     The  mer- 
chandize and  effects  saved  shall 
be  deposited  in  the  nearest  cus- 
tom-house,    or     other    place     of 
safety,  with  the  inventory  thereof, 
which   shall   have   been   made   by 
the  Consul  or  Vice-Consul,  or  by 
the   judge   who    shall    have    pro- 
ceeded in  their  absence,  that  the 
said  effects  and  merchandize  may 
be    afterwards    delivered,    (after 
levying  therefrom  the  costs,)  and 
without   form  of  process  to  the 
owners,  who,  being  furnished  with 
an  order  for  their  delivery  from 
the  nearest  Consul  or  Vice-Con- 
sul, shall  reclaim  them  by  them- 
selves or  by  their  order,  either  for 
the  purpose  of  re-exporting  such 
merchandize,   in  which  case  they 
shall  pay  no  kind  of  duty  of  ex- 
portation,  or   for   that  of   selling 
them  in  the  country,  if  they  be  not 
prohibited  there,  and  in  this  last 
case  the  said  merchandize,  if  they 
be  damaged,  shall  be  allowed  an 
abatement  of  entrance  duties,  pro- 
portioned to  the  damage  they  have 
sustained,   which   shall  be   ascer- 


loix  respectives;  sauf  au  dit  juge 
territorial  a  se  retirer,  le  consul  ou 
vice-consul  survenant,  et  a  lui  re- 
mettre  I'expedition  des  proce- 
dures par  lui  faites,  dont  le  consul 
ou  vice-consul  lui  fera  rembour- 
ser  les  fraix,  ainsi  que  ceux  du 
sauvetage.  Les  marchandises  et 
effets  sauves  devront  etre  deposes 
a  la  doiiane  ou  autre  lieu  de  siirete 
le  plus  prochain  avec  I'inventaire 
qui  en  aura  ete  dresse  par  le  con- 
sul ou  vice-consul,  ou  en  leur 
absence  par  le  juge  qui  en  aura 
connu,  pour  les  dits  effets  et  mar- 
chandises etre  ensuite  delivres 
apres  le  prelevement  des  fraix, 
et  sans  forme  de  proces,  aux  pro- 
prietaires,  qui,  munis  de  la  main- 
levee  du  consul  ou  vice-consul  le 
plus  proche,  les  reclameront  par 
eux-memes,  ou  par  leurs  manda- 
taires,  soit  pour  reexporter  les 
marchandises,  et  dans  ce  cas  elles 
ne  pai'eront  aucune  espece  de 
droits  de  sortie,  soit  pour  les  ven- 
dre  dans  le  pais,  si  elles  n'y  sont 
pas  prohibees ;  et  dans  ce  dernier 
cas,  les  dites  marchandises  se 
trouvant  avarices,  on  leur  accor- 
dera  une  moderation  sur  les 
droits  d'entree  proportionne  au 
dommage  souffert,  lequel  sera 
constate  par  le  proces  verbal 
dresse  lors  du  naufrage  ou  de 
Techoiiement. 


482   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 

tained  by  the  affidavits  taken  at 
the  time  the  vessel  was  wrecked 
or  struck. 


Article  VIII 

The  Consuls  or  Vice-Consuls 
shall  exercise  police  over  all  the 
vessels  of  their  respective  nations, 
and  shall  have  on  board  the  said 
vessels  all  power  and  jurisdiction 
in  civil  matters,  in  all  the  disputes 
which  may  there  arise ;  they  shall 
have  an  entire  inspection  over  the 
said  vessels,  their  crew,  and  the 
changes  and  substitutions  there  to 
be  made ;  for  which  purpose  they 
may  go  on  board  the  said  vessels 
whenever  they  may  judge  it  nec- 
essary. Well  understood  that  the 
functions  hereby  allowed  shall  be 
confined  to  the  interior  of  the  ves- 
sels, and  that  they  shall  not  take 
place  in  any  case  which  shall  have 
any  interference  with  the  police 
of  the  ports  where  the  said  vessels 
shall  be. 


Article  VIII 

Les  consuls  ou  vice-consuls 
exerceront  la  police  sur  tous  les 
batiments  de  leurs  nations  res- 
pectives,  et  auront  a  bord  des  dits 
batiments  tout  pouvoir  et  juris- 
diction en  matiere  civile  dans 
toutes  les  discussions  qui  pour- 
ront  y  survenir;  ils  auront  une 
entiere  inspection  sur  les  dits 
batiments,  leurs  equipages  et  les 
changements  et  remplacements  a 
y  f aire ;  pour  quel  effet  ils  pour- 
ront  se  transporter  a  bord  des  dits 
batiments  toutes  les  fois  qu'ils  le 
jugeront  necessaire ;  bien  entendu 
que  les  fonctions  ci-dessus  enon- 
cees  seront  concentrees  dans  I'in- 
terieur  des  batiments,  et  qu'elles 
ne  pourront  avoir  lieu  dans  aucun 
cas  qui  aura  quelque  rapport  avec 
la  police  des  ports  oil  les  dits 
batiments  se  trouveront. 


Article  IX 

The  Consuls  and  Vice-Consuls 
may  cause  to  be  arrested  the  cap- 
tains, officers,  mariners,  sailors 
and  all  other  persons  being  part 
of  the  crews  of  the  vessels  of 
their  respective  nations,  who 
shall  have  deserted  from  the  said 
vessels,  in  order  to  send  them  back 
and    transport    them    out    of    the 


Article  IX 

Les  consuls  et  vice-consuls 
pourront  faire  arreter  les  capi- 
taines,  officiers,  mariniers,  mate- 
lots  et  toutes  autres  personnes 
faisant  partie  des  equipages  des 
batiments  de  leurs  nations  res- 
pectives,  qui  auroient  deserte  des 
dits  batiments,  pour  les  renvoyer 
et  faire  transporter  hors  du  pais. 


CONSULAR  CONVENTION  OF  1788 


ASS 


country;  for  which  purpose  the 
said  Consuls  and  Vice-Consuls 
shall  address  themselves  to  the 
courts,  judges  and  officers  compe- 
tent, and  shall  demand  the  said 
deserters  in  writing,  proving  by 
an  exhibition  of  the  registers  of 
the  vessel  or  ship's  roll  that  those 
men  were  part  o  f the  said  crews ; 
and  on  this  demand  so  proved 
(saving,  however,  where  the  con- 
trary is  proved)  the  delivery  shall 
not  be  refused ;  and  there  shall  be 
given  all  aid  and  assistance  to  the 
said  Consuls  and  Vice-Consuls  for 
the  search,  seizure  and  arrest  of 
the  said  deserters,  who  shall  even 
be  detained  and  kept  in  the  prisons 
of  the  country,  at  their  request 
and  expense,  until  they  shall  have 
found  an  opportunity  of  sending 
them  back ;  but  if  they  be  not  sent 
back  within  three  months,  to  be 
counted  from  the  day  of  their  ar- 
rest, they  shall  be  set  at  liberty, 
and  shall  be  no  more  arrested  for 
the  same  cause. 


Auquel  effet  les  dits  consuls  et 
vice-consuls  s'addresseront  aux 
tribunaux,  juges,  et  officiers  com- 
petents  et  leur  feront,  par  ecrit, 
la  demande  des  dits  deserteurs,  en 
justifiant  par  I'exhibition  des  re- 
gistres  du  batiment  ou  role  d'equi- 
page,  que  ces  hommes  faisoient 
partie  des  susdits  equipages.  Et 
sur  cette  demande,  ainsi  justifiee, 
sauf  toutefois  la  preuve  contraire, 
I'extradition  ne  pourra  etre  re- 
fusee  ;  et  il  sera  donne  toute  aide 
et  assistance  aux  dits  consuls  et 
vice-consuls  pour  la  recherche, 
saisie  et  arrestation  des  susdits 
deserteurs,  lesquels  seront  meme 
detenus  et  gardes  dans  les  prisons 
du  pais,  a  leur  requisition,  et  a 
leurs  frais  jusqu'a  ce  qu'ils  a'ient 
trouve  occasion  de  les  renoyer. 
Mais  s'ils  n'etoient  renvoyes  dans 
le  delai  de  trois  mois  a  compter 
du  jour  de  leur  arret,  ils  seront 
elargis,  et  ne  pourront  plus  etre 
arretes  pour  la  meme  cause. 


Article  X 

In  cases  where  the  respective 
subjects  or  citizens  shall  have 
committed  any  crime,  or  breach 
of  the  peace,  they  shall  be  ame- 
nable to  the  judges  of  the  country. 


Akticxe  X 

Dans  le  cas  oii  les  sujets  ou 
citoyens  respectifs  auront  com- 
mis  quelque  crime  ou  infraction 
de  la  tranquillite  publique,  ils  se- 
ront justiciables  des  juges  du  pais. 


Article  XI 

When  the  said  oflfenders  shall 
be  a  part  of  the  crew  of  a  vessel 


Article  XI 

Lorsque  les  dits  coupables  fe- 
ront partie  de  I'equipage  de  I'un 


484   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


of  their  nation,  and  shall  have 
withdrawn  themselves  on  board 
the  said  vessel,  they  may  be  there 
seized  and  arrested  by  order  of 
the  judges  of  the  country.  These 
shall  give  notice  thereof  to  the 
Consul  or  Vice-Consul,  who  may 
repair  on  board  if  he  thinks 
proper ;  but  this  notification  shall 
not  in  any  case  delay  execution  of 
the  order  in  question.  The  per- 
sons arrested  shall  not  after- 
wards be  set  at  liberty  until  the 
Consul  or  Vice-Consul  shall  have 
been  notified  thereof ;  and  they 
shall  be  delivered  to  him,  if  he  re- 
quires it,  to  be  put  again  on  board 
of  the  vessel  on  which  they  were 
arrested,  or  of  others  of  their  na- 
tion, and  to  be  sent  out  of  the 
country. 

Article  XII 

All  differences  and  suits  be- 
tween the  subjects  of  the  Most 
Christian  King  in  the  United 
States,  or  between  the  citizens  of 
the  United  States  within  the  do- 
minions of  the  Most  Christian 
King,  and  particularly  all  disputes 
relative  to  the  wages  and  terms 
of  engagement  of  the  crews  of  the 
respective  vessels,  and  all  differ- 
ences, of  whatever  nature  they  be, 
which  may  arise  between  the  pri- 
vates of  the  said  crews,  or  be- 
tween any  of  them  and  their  cap- 
tains, or  between  the  captains  of 
different  vessels  of  their  nation, 
shall  be  determined  by  the  respec- 


des  batiments  de  leur  nation,  et  se 
seront  retires  a  bord  des  dits 
navires,  ils  pourront  y  etre  saisis 
et  arretes  par  I'ordre  des  juges 
territoriaux :  ceux-ci  en  previen- 
dront  le  consul  ou  vice-consul, 
lequel  pourra  se  rendre  a  bord  s'il 
le  juge  a-propos :  mais  cette  pre- 
venance ne  pourra  en  aucun  cas 
retarder  I'execution  de  I'ordre 
dont  il  est  question.  Les  person- 
nes  arretees  ne  pourront  ensuite 
etre  mises  en  liberte,  qu'apres  que 
le  consul  ou  vice-consul  en  aura 
ete  prevenu,  et  elles  lui  seront  re- 
mises s'il  le  requiert,  pour  etre 
reconduites  sur  les  batiments  ou 
elles  auront  ete  arretes,  ou  autres 
de  leur  nation,  et  etre  renvoyees 
hors  du  pais. 

Article  XII 

Tous  differends  et  proces  entre 
les  sujets  du  Roi  tres  Chretien 
dans  les  Etats  Unis,  ou  entre  les 
citoyens  des  Etats  Unis  dans  les 
Etats  du  Roi  tres  Chretien,  et 
notamment  toutes  les  discustions 
relatives  aux  salaires  et  conditions 
des  engagements  des  equipages 
des  batiments  respectifs,  et  tous 
differends  de  quelque  nature 
qu'ils  soient,  qui  pourroient  s'ele- 
ver  entre  les  hommes  des  dits 
equipages,  ou  entre  quelques  uns 
d'eux  et  leurs  capitaines,  ou  entre 
les  capitaines  de  divers  batiments 
nationaux,  seront  termines  par  les 
consuls  et  vice-consuls  respectifs, 


CONSULAR  CONVENTION  OF  1788 


485 


tive  Consuls  and  Vice-Consuls, 
either  by  a  reference  to  arbitra- 
tors, or  by  a  summary  judgment, 
and  without  costs.  No  officer  of 
the  country,  civil  or  military,  shall 
interfere  therein,  or  take  any  part 
whatever  in  the  matter ;  and  the 
appeals  from  the  said  consular 
sentences  shall  be  carried  before 
the  tribunals  of  France  or  of  the 
United  States,  to  whom  it  may 
appertain  to  take  cognizance 
thereof. 

Article  XIII 

The  general  utility  of  commerce 
having  caused  to  be  established 
within  the  dominions  of  the  Most 
Christian  King  particular  tribu- 
nals and  forms  for  expediting  the 
decision  of  commercial  aflfairs,  the 
merchants  of  the  United  States 
shall  enjoy  the  benefit  of  these  es- 
tablishments ;  and  the  Congress  of 
the  United  States  will  provide  in 
the  manner  the  most  conformable 
to  its  laws  for  the  establishment 
of  equivalent  advantages  in  favour 
of  the  French  merchants,  for  the 
prompt  dispatch  and  decision  of 
aflfairs  of  the  same  nature. 


soit  par  un  renvoi  par  devant  des 
arbitres,  soit  par  un  jugement 
sommaire,  et  sans  frais.  Aucun 
officier  territorial,  civil  ou  mili- 
taire  ne  pourra  y  intervenir,  ou 
prendre  une  part  quelconque  a 
I'affaire,  et  les  appels  des  dits 
jugements  consulaires  seront  por- 
tes  devant  les  tribunaux  de  France 
ou  des  Etats  Unis  qui  doivent  en 
connaitre. 


Article  XIII 

L'utilite  generale  du  commerce 
aiant  fait  etablir  dans  les  etats  du 
Roi  tres  Chretien,  des  tribunaux 
et  des  formes  particulieres  pour 
accelerer  la  decision  des  affaires 
de  commerce,  les  negocians  des 
Etats  Unis  jouiront  du  benefice 
de  ces  etablissements,  et  le  Con- 
gres  des  Etats  Unis  pourvoira  de 
la  maniere  la  plus  conforme  a  ses 
lois,  a  I'etablissement  des  avan- 
tages  equivalents  en  faveur  des 
negociants  Frangais  pour  la 
prompte  expedition  et  decision 
des  affaires  de  la  meme  nature. 


Article  XIV 

The  subjects  of  the  Most  Chris- 
tian King,  and  the  citizens  of  the 
United  States  who  shall  prove  by 
legal  evidence  that  they  are  of  the 
said  nations  respectively,  shall  in 
consequence  enjoy  an   exemption 


Article  XIV 

Les  sujets  du  Roi  tres  Chretien 
et  les  citoyens  des  Etats  Unis,  qui 
justifieront  authentiquement  etre 
du  corps  de  la  nation  respective, 
jouiront  en  consequence  de  I'ex- 
emption  de  tout  service  personnel 


486   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


from  all  personal   service  in  the 
place  of  their  settlement. 

Article  XV 

If  any  other  nation  acquires  by 
virtue  of  any  convention  whatever 
a  treatment  more  favourable  with 
respect  to  the  consular  pre-emi- 
nences, powers,  authority  and 
privileges,  the  Consuls  and  Vice- 
Consuls  of  the  Most  Christian 
King,  or  of  the  United  States, 
reciprocally  shall  participate 
therein,  agreeable  to  the  terms 
stipulated  by  the  second,  third  and 
fourth  articles  of  the  treaty  of 
amity  and  commerce  concluded 
between  the  Most  Christian  King 
and  the  United  States. 

Article  XVI 

The  present  convention  shall  be 
in  full  force  during  the  term  of 
twelve  years,  to  be  counted  from 
the  day  of  the  exchange  of  rati- 
fications, which  shall  be  given  in 
proper  form,  and  exchanged  on 
both  sides  within  the  space  of  one 
year,  or  sooner  if  possible. 

In  faith  whereof,  we,  Ministers 
Plenipotentiary,  have  signed  the 
present  convention,  and  have 
thereto  set  the  seal  of  our  arms. 

Done  at  Versailles  the  14th  of 
November,    one    thousand    seven 
hundred  and  eighty-eight. 
L.  C.  De  Montmorin  [l.  s.] 
Th  :  Jefferson  [l.  s.] 


dans  le  lieu  de  leur  etablissement. 

Article  XV 

Si  quelqu'autre  nation  acquiert, 
en  vertu  d'une  convention  quel- 
conque,  un  traitement  plus  favo- 
rable relativement  aux  preemi- 
nences, pouvoirs,  autorite  et  privi- 
leges consulaires,  les  consuls  et 
vice-consuls  du  Roi  tres  Chretien 
ou  des  Etats  Unis,  reciproque- 
ment,  y  participeront,  aux  termes 
stipules  par  les  articles  deux,  trois 
et  quatre,  du  traite  d'amitie  et  de 
commerce  conclu  entre  le  Roi  tres 
Chretien  et  les  Etats  Unis. 


Article  XVI 

La  presente  convention  aura 
son  plein  eifet  pendant  I'espace  de 
douze  ans  a  compter  du  jour  de 
I'echange  des  ratifications,  les- 
quelles  seront  donnees  en  bonne 
forme  et  echangees  de  part  et 
d'autre  dans  I'espace  d'un  an,  ou 
plutot  si  faire  se  pent. 

En  foi  de  quoi,  nous,  Ministres 
Plenipotentiaires,  avons  signe  la 
presente  convention,  et  y  avons 
fait  apposer  le  cachet  de  nos 
armes. 

Fait  a  Versailles,  le  14  Novem- 
bre,  mil  sept  cent  quatre-vingt- 
huit. 

L.  C.  De  Montmorin  [l.  s.] 

Thomas  Jefferson       [l.  s.] 


CONVENTION  OF  1800 


487 


Convention  of  Peace,  Commerce  and  Navigation,  September  30, 1800^ 

Concluded  September  ^o,  i8oo;  ratifications  exchanged  at  Paris,  July 
ji,  i8oi ;  proclaimed  December  2i,   i8oi 


The  Premier  Consul  of  the 
French  RepubHc  in  the  name  of 
the  people  of  France,  and  the 
President  of  the  United  States  of 
America,  equally  desirous  to  ter- 
minate the  differences  which  have 
arisen  between  the  two  States, 
have  respectively  appointed  their 
Plenipotentiaries,  and  given  them 
full  powers  to  treat  upon  those 
differences,  and  to  terminate  the 
same ;  that  is  to  say,  the  Premier 
Consul  of  the  French  Republic,  in 
the  name  of  the  people  of  France, 
has  appointed  for  the  Plenipoten- 
tiaries of  the  said  Republic  the 
citizens  Joseph  Bonaparte,  ex- 
Ambassador  at  Rome  and  Coun- 
sellor of  State ;  Charles  Pierre 
Claret  Fleurieu,  Member  of  the 
National  Institute  and  of  the 
Board  of  Longitude  of  France 
and  Counsellor  of  State,  President 
of  the  Section  of  Marine ;  and 
Pierre  Louis  Roederer,  Member  of 
the  National  Institute  of  France 
and  Counsellor  of  State,  Presi- 
dent of  the  Section  of  the  Inte- 
rior; and  the  President  of  the 
United  States  of  America,  by  and 
with  the  advice  and  consent  of  the 
Senate  of  the  said  States,  has  ap- 
pointed for  their  Plenipotentiaries, 
Oliver  Ellsworth,  Chief  Justice  of 


Le  Premier  Consul  de  la  Re- 
publique  Frangaise  au  nom  du 
Peuple  Frangais,  et  le  President 
des  Etats-Unis  d'Amerique,  egale- 
ment  animes  du  desir  de  mettre  fin 
aux  differends  qui  sont  survenus 
entre  les  deux  Etats,  ont  res- 
pectivement  nomme  leurs  Pleni- 
potentiaires,  et  leur  ont  donne 
pleinpouvoir  pour  negocier  sur  ces 
differends  et  les  terminer;  c'est  a 
dire,  le  Premier  Consul  de  la  Re- 
publique  Frangaise,  au  nom  du 
Peuple  Frangaise,  a  nomme  pour 
plenipotentiaires  de  la  dite  Re- 
publique,  les  Citoyens  Joseph 
Bonaparte,  ex-ambassadeur  de  la 
Republique  Frangais  a  Rome  et 
Conseiller  d'Etat,  Charles  Pierre 
Claret  Fleurieu,  membre  de  I'lnsti- 
tut  National  et  du  Bureau  des 
Longitudes  de  France,  et  Conseil- 
ler d'Etat,  President  de  la  Section 
de  la  Marine,  et  Pierre  Louis  Roe- 
derer, membre  de  I'Institut  Na- 
tional de  France,  et  Conseiller 
d'Etat,  President  de  la  Section  de 
rinterieur ;  et  le  President  des 
Etats-Unis,  d'Amerique,  par  et 
avec  I'avis  et  le  consentement  du 
Senat  des  dits  Etats,  a  nomme 
pour  leurs  Plenipotentiaires,  Oli- 
vier Ellsworth,  Chef  de  la  Justice 
des  Etats-Unis ;  William  Richard- 


18  Stat.  L.  178;  18  Stat.  L.  pt.  2,  p.  224;  Treaties  and  Conventions,  1889,  p.  322. 


488   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


the  United  States;  William  Rich- 
ardson Davie,  late  Governor  of 
the  State  of  North  Carolina;  and 
William  Vans  Murray,  Minister 
Resident  of  the  United  States  at 
the  Hague ;  who,  after  having  ex- 
changed their  full  powers,  and 
after  full  and  mature  discussion 
of  the  respective  interests,  have 
agreed  on  the  following  articles : 

Article  I 

There  shall  be  a  firm,  inviolable, 
and  universal  peace,  and  a  true 
and  sincere  friendship  between 
the  French  Republic  and  the 
United  States  of  America,  and 
between  their  respective  countries, 
territories,  cities,  towns,  and  peo- 
ple, without  exception  of  persons 
or  places. 

Article  IP 

The  Ministers  Plenipotentiary 
of  the  two  parties  not  being  able 
to  agree  at  present  respecting  the 
treaty  of  alliance  of  6th  February, 
1778,  the  treaty  of  amity  and 
commerce  of  the  same  date,  and 
the  convention  of  14th  of  Novem- 
ber, 1788,  nor  upon  the  indemni- 
ties mutually  due  or  claimed,  the 
parties  will  negociate  further  on 
these  subjects  at  a  convenient 
time,    and    until    they    may    have 


son  Davie,  ci-devant  Gouverneur 
de  I'Etat  de  la  Caroline  septentrio- 
nale,  et  William  Vans  Murray, 
Ministre  resident  des  Etats-Unis 
a  La  Haye. 

Lesquels,  apres  avoir  fait  I'ex- 
change  de  leurs  pleins-pouvoirs 
longuement  et  murement  discute 
les  Interets  respectifs,  sont  con- 
venus  des  articles  suivans. 

Article  I 

II  y  aura  une  paix  ferme,  in- 
violable et  universelle,  et  une  ami- 
tie  vraie  et  sincere,  entre  la  Re- 
publique  Frangaise  et  les  Etats- 
Unis  d'Amerique,  ainsi  qu'entre 
leurs  pays,  territoires,  villes  et 
places,  et  entre  leurs  citoyens  et 
habitants,  sans  exception  de  per- 
sonnes  ni  de  lieux. 

Article  II 

Les  Ministres  Plenipotentiaires 
des  deux  parties  ne  pouvant  pour 
le  present  s'accorder  relativement 
au  Traite  d' Alliance  du  6  Fevrier 
1778,  au  Traite  d'Amitie  et  de 
commerce  de  la  meme  date,  et  a 
la  Convention  en  date  du  14  No- 
vembre  1788,  non  plus  que  rela- 
tivement aux  indemnites  mutuelle- 
ment  dues  ou  reclamees,  les  parties 
negocieront  ulterieurement  sur 
ces   objets,  dans  un  terns  conve- 


1  This  article  was  expunged  before  the  final  ratification  of  the  treaty,  and  the 
following  article  was  added : 

"It  is  agreed  that  the  present  convention  shall  be  in  force  for  the  term  of 
eight  years  from  the  time  of  the  exchange  of  ratifications." 


CONVENTION  OF  1800 


489 


agreed  upon  these  points  the  said 
treaties  and  convention  shall  have 
no  operation,  and  the  relations  of 
the  two  countries  shall  be  regu- 
lated as  follows : 


Article  III 

The  public  ships  which  have 
been  taken  on  one  part  and  the 
other,  or  which  may  be  taken  be- 
fore the  exchange  of  ratifications, 
shall  be  restored. 


nable :  et  jusqu'  a  ce  qu'elles  se 
soyent  accordees  sur  ces  points, 
les  dits  Traites  et  convention 
n'auront  point  d'Effet,  et  les  rela- 
tions des  deux  Nations  seront  re- 
glees  ainsi  qu'il  suit. 

Article  III 

Les  Batimens  d'Etats  qui  ont 
ete  pris  de  part  et  d'autre  ou  qui 
pourraient  etre  pris  avant  I'echange 
des  ratifications  seront  rendus. 


Article  IV 

Property  captured,  and  not  yet 
definitively  condemned,  or  which 
may  be  captured  before  the  ex- 
change of  ratifications  (contra- 
band goods  destined  to  an  enemy's 
port  excepted)  shall  be  mutually 
restored  on  the  following  proofs 
of  ownership,  viz :  The  proof  on 
both  sides  with  respect  to  mer- 
chant ships,  whether  armed  or  un- 
armed, shall  be  a  passport  in  the 
form  following: 


"To  all  zvho  shall  see  these  pres- 
ents, greeting: 

"It  is  hereby  made  known  that 
leave    and    permission    has    been 

given  to   ,   master 

and  commander  of  the  ship  called 

,  of   the  town  of  , 

burthen    tons,    or    there- 
abouts,   lying   at   present    in   the 


Article  IV 

Les  proprietes  capturees  et  non 
encore  condamnees  definitivement, 
ou  qui  pourront  etre  capturees 
avant  Techange  des  ratifications, 
excepte  les  marchandises  de  con- 
trabande  destinees  pour  un  port 
ennemi,  seront  rendues  mutuelle- 
ment  sur  les  preuves  suivantes  de 
propriete ;  S avoir: 

De  part  et  d'autre,  les  preuves 
de  propriete  relativement  aux  na- 
vires  marchands,  armes  ou  non 
armes,  seront  un  passeport  de  la 
form  suivante : 

"A  tous  ceux  qui  les  presentes 
verront,  soit  notoire  que  faculte  et 
permission  a  ete  accordee  a 
maitre  ou  commandant  du  navire, 
appelle  de  la  ville  de 

de  la  capacite  de  tonneaux 

ou  environ,  se  trouvant  presente- 
ment   dans   le   port    et   havre   de 
et   destine  pour  charge 


490  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


port   and    haven   of   ,   and 

bound  for ,  and  laden  with 

;   after   that   his   ship   has 


been  visited,  and  before  saiHng. 
he  shall  make  oath  before  the  offi- 
cers who  have  the  jurisdiction  of 
maritime  affairs,  that  the  said 
ship  belongs  to  one  or  more  of  the 

subjects  of ,  the  act  whereof 

shall  be  put  at  the  end  of  these 
presents,  as  likewise  that  he  will 
keep,  and  cause  to  be  kept,  by  his 
crew  on  board,  the  marine  ordi- 
nances and  regulations,  and  enter 
in  the  proper  office  a  list,  signed 
and  witnessed,  containing  the 
names  and  surnames,  the  places  of 
birth  and  abode  of  the  crew  of  his 
ship,  and  of  all  who  shall  embark 
on  board  her,  whom  he  shall  not 
take  on  board  without  the  knowl- 
edge and  permission  of  the  offi- 
cers of  the  marine ;  and  in  every 
port  or  haven  where  he  shall  en- 
ter with  his  ship,  he  shall  shew 
this  present  leave  to  the  officers 
and  judges  of  the  marine,  and 
shall  give  a  faithful  account  to 
them  of  what  passed  and  was 
done  during  his  voyage ;  and  he 
shall  carry  the  colours,  arms,  and 
ensigns  of  the  [French  Republic 
or  the  United  States]  during  his 
voyage.  In  witness  whereof  we 
have  signed  these  presents,  and 
put  the  seal  of  our  arms  there- 
unto, and  caused  the  same  to  be 

countersigned   by       - — —   

at the day  of 

anno  Domini." 


de  qu'apres  que  son  navire 

a  ete  visite  et  avant  son  depart,  il 
pretera  serment  entre  les  mains 
des  officiers  autorises  a  cet  effet; 
que  le  dit  navire  appartient  a  un 
ou  plusieurs  sujets  de  dont 

I'acte  sera  mis  a  la  fin  des  presen- 
tes ;  de  meme  qu'il  gardera  et  f  era 
garder  par  son  equipage,  les  or- 
donnances  et  reglemens  maritimes, 
et  remettra  une  liste  signee  et  con- 
firmee par  temoins,  contenant  les 
noms  et  surnoms,  les  lieux  de 
naissance,  et  la  Demeure  des  Per- 
sonnes  composant  I'equipage  de 
son  navire,  et  de  tous  ceux  qui  s'y 
embarqueront,  lesquels  il  ne  re- 
cevra  pas  a  bord  sans  la  connais- 
sance  et  permission  des  officiers 
autorises  a  ce ;  et  dans  chaque 
port  ou  havre  oi^i  il  entrera  avec 
son  navire,  il  montrera  la  presente 
permission  aux  officiers  a  ce  auto- 
rises, et  leur  fera  un  rapport  fi- 
dele  de  ce  qui  s'est  passe  durant 
son  voyage ;  et  il  portera  les  cou- 
leurs,  armes  et  enseignes  (de  la 
Republique  Frangaise  ou  des 
Etats  Unis)  durant  son  dit  vo- 
yage. En  temoin  de  quoi  nous 
avons  signe  les  presentes,  les  avons 
fait    contresigncr    par  et    y 

avons  fait  apposer  le  sceau  de  nos 
armes. 

Donne  a  le  de 

Van  de  grace,  le 


CONVENTION  OF  1800 


491 


And  this  passport  will  be  suffi- 
cient without  any  other  paper,  any 
ordinance  to  the  contrary  not- 
withstanding ;  which  passport 
shall  not  be  deemed  requisite  to 
have  been  renewed  or  recalled, 
whatever  number  of  voyages  the 
said  ship  may  have  made,  unless 
she  shall  have  returned  home 
within  the  space  of  a  year.  Proof 
with  respect  to  the  cargo  shall  be 
certificates,  containing  the  several 
particulars  of  the  cargo,  the  place 
whence  the  ship  sailed  and 
whither  she  is  bound,  so  that  the 
forbidden  and  contraband  goods 
may  be  distinguished  by  the  cer- 
tificates ;  which  certificates  shall 
have  been  made  out  by  the  officers 
of  the  place  whence  the  ship  set 
sail,  in  the  accustomed  form  of 
the  country.  And  if  such  pass- 
port or  certificates,  or  both,  shall 
have  been  destroyed  by  accident 
or  taken  away  by  force,  their  de- 
ficiency may  be  supplied  by  such 
other  proofs  of  ownership  as  are 
admissible  by  the  general  usage  of 
nations.  Proof  with  respect  to 
other  than  merchant  ships  shall  be 
the  commission  they  bear. 

This  article  shall  take  effect 
from  the  date  of  the  signature  of 
the  present  convention.  And  if, 
from  the  date  of  the  said  signa- 
ture, any  property  shall  be  con- 
demned contrary  to  the  intent  of 
the  said  convention,  before  the 
knowledge  of  this  stipulation  shall 


Et  ce  passeport  suffira  sans 
autre  piece,  non  obstant  tout  regle- 
ment  contraire.  II  ne  sera  pas 
exige  que  ce  passeport  ait  ete  re- 
nouvelle  ou  revoque,  quelque  nom- 
bre  de  voyages  que  le  dit  navire  ait 
pu  faire,  a  moins  qu'il  ne  soit  re- 
venu  chez  lui  dans  I'espace  d'une 
annee. 

Par  rapport  a  la  cargaison,  les 
preuves  seront  des  certificates  con- 
tenant  le  detail  de  la  cargaison,  du 
lieu  d'ou  le  Batiment  est  parti  et 
de  celui  ou  il  va,  de  maniere  que 
les  marchandises  defendues  et  de 
contrebande  puissent  etre  distin- 
guees  par  les  certifi.cats,  lesquels 
certificats  auront  ete  faits  par  les 
officiers  de  I'endroit  d'ou  le  navire 
sera  parti,  dans  la  forme  usitee 
dans  le  pays,  et  si  ces  passeports 
ou  certificats,  ou  les  uns  et  les 
autres  ont  ete  detruits  par  acci- 
dent, ou  enleves  de  force,  leur  De- 
f  aut  pourra  etre  supplee  par  toutes 
les  autres  preuves  de  propriete  ad- 
missibles  d'apres  I'usage  general 
des  Nations. 

Pour  les  Batimens  autres  que 
les  navires  marchands,  les  preuves 
seront  la  Commission  dont  il  sont 
porteurs.  Cet  article  aura  son 
efTet  a  dater  de  la  signature  de  la 
presente  convention ;  et  si  a  dater 
de  la  dite  signature,  des  proprietes 
sont  condamnees  contrairement  a 
I'esprit  de  la  dite  convention,  avant 
qu'on  ait  connaissance  de  cette 
stipulation  la  propriete  ainsi  con- 


492   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


be  obtained,  the  property  so  con- 
demned shall,  without  delay,  be 
restored  or  paid  for. 

Article  V 

The  debts  contracted  by  one  of 
the  two  nations  with  individuals 
of  the  other,  or  by  the  individuals 
of  one  with  the  individuals  of  the 
other,  shall  be  paid,  or  the  pay- 
ment may  be  prosecuted,  in  the 
same  manner  as  if  there  had  been 
no  misunderstanding  between  the 
two  States.  But  this  clause  shall 
not  extend  to  indemnities  claimed 
on  account  of  captures  or  confis- 
cations. 


damnee   sera,    sans   delai,   rendue 
ou  payee. 

Article  V 

Les  Dettes  contractees  par  I'une 
des  deux  nations  envers  les  parti- 
culiers  de  I'autre,  ou  par  des  par- 
ticuliers  de  I'une  envers  des  par- 
ticuliers  de  I'autre,  seront  acquit- 
tees  ou  le  payement  en  sera  pour- 
suivi  comme  s'il  n'y  avait  eu  au- 
cune  mesintelligence  entre  les 
deux  Etats ;  mais  cette  clause  ne 
s'etendra  point  aux  indemnites  re- 
clamees  pour  des  captures  ou  pour 
des  condamnations. 


Article  VI 

Commerce  between  the  parties 
shall  be  free.  The  vessels  of  the 
two  nations  and  their  privateers, 
as  well  as  their  prizes,  shall  be 
treated  in  their  respective  ports  as 
those  of  the  nation  the  most  fa- 
voured; and,  in  general,  the  two 
parties  shall  enjoy  in  the  ports  of 
each  other,  in  regard  to  commerce 
and  navigation,  the  privileges  of 
the  most  favoured  nation. 

Article  VII 

The  citizens  and  inhabitants  of 
the  United  States  shall  be  at  lib- 
erty to  dispose  by  testament,  do- 
nation, or  otherwise,  of  their 
goods,  moveable  and  immoveable, 
holden    in    the    territory    of    the 


Article  VI 

Le  commerce  entre  les  deux 
Parties  sera  libre :  les  vaisseaux 
des  deux  nations  et  leurs  corsaires, 
ainsi  que  leurs  prises,  seront 
traites  dans  les  ports  respectifs 
comme  ceux  de  la  nation  la  plus 
favorisee,  et,  en  general,  les  deux 
parties  jouiront  dans  les  ports 
I'une  de  I'autre,  par  rapport  au 
commerce  et  a  la  navigation,  des 
privileges  de  la  nation  la  plus  fa- 
vorisee. 

Article  VII 

Les  Citoyens  et  Habitans  des 
Etats-Unis  pourront  disposer  par 
testament,  donation  ou  autrement, 
de  leurs  biens,  meubles  et  im- 
meubles  possedes  dans  le  territoire 
Europeen  de  la  Republique  Fran- 


CONVENTION  OF  1800 


493 


French  Republic  in  Europe,  and 
the  citizens  of  the  French  Repub- 
lic shall  have  the  same  liberty  with 
regard  to  goods,  moveable  and 
immoveable,  holden  in  the  terri- 
tory of  the  United  States,  in  favor 
of  such  persons  as  they  shall  think 
proper.  The  citizens  and  inhabi- 
tants of  either  of  the  two  coun- 
tries who  shall  be  heirs  of  goods, 
moveable  or  immoveable,  in  the 
other,  shall  be  able  to  succeed  ab 
intestato,  without  being  obliged  to 
obtain  letters  of  naturalization, 
and  without  having  the  effect  of 
this  provision  contested  or  im- 
peded, under  any  pretext  what- 
ever; and  the  said  heirs,  whether 
such  by  particular  title,  or  ab  in- 
testato, shall  be  exempt  from  any 
duty  whatever  in  both  countries. 
It  is  agreed  that  this  article  shall 
in  no  manner  derogate  from  the 
laws  which  either  State  may  now 
have  in  force,  or  hereafter  may 
enact,  to  prevent  emigration ;  and 
also  that  in  case  the  laws  of  either 
of  the  two  States  should  restrain 
strangers  from  the  exercise  of 
the  rights  of  property  with  respect 
to  real  estate,  such  real  estate  may 
be  sold,  or  otherwise  disposed  of, 
to  citizens  or  inhabitants  of  the 
country  where  it  may  be,  and  the 
other  nation  shall  be  at  liberty  to 
enact  similar  laws. 


gaise ;  et  les  citoyens  de  la  Repu- 
blique  Frangaise  auront  la  meme 
faculte  a  I'egard  des  biens,  meu- 
bles  et  immeubles  possedes  dans  le 
Territoire  des  Etats-Unis,  en  fa- 
veur  de  telle  personne  que  bon  leur 
semblera.  Les  citoyens  et  habi- 
tans  d'un  des  deux  Etats,  qui  se- 
ront  heritiers  des  Biens,  meubles 
ou  immeubles  situes  dans  I'autre, 
pourront  succeder  ab  intestat, 
sans  qu'ils  ayent  besoin  de  lettres 
de  naturalite  et  sans  que  I'effet  de 
cette  stipulation,  leur  puisse  etre 
conteste  ou  empeche,  sous  quelque 
pretexte  que  ce  soit ;  et  seront  les 
dits  heritiers,  soit  a  titre  particu- 
lier,  soit  ab  intestat,  exempts  de 
tout  droit  quelconque  chex  les 
deux  nations.  II  est  convenu  que 
cet  article  ne  derogera  en  aucune 
maniere  aux  lois  qui  sont  a  present 
en  vigeur  chez  les  deux  nations 
ou  qui  pourraient  etre  promul- 
guees  a  la  suite  contre  I'emigra- 
tion,  et  aussi  que  dans  le  cas  ou  les 
lois  de  I'un  des  deux  Etats  limite- 
raient  pour  les  etrangers  I'exercice 
des  droits  de  la  propriete  sur  les 
immeubles  on  pourrait  vendre  ces 
immeubles  ou  en  disposer  autre- 
ment  en  faveur  d'habitans  ou  de 
citoyens  du  pays  ou  ils  seraient 
situes,  et  il  sera  libre  a  I'autre  na- 
tion  d'etablir  de  semblables  lois. 


494   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


Article  VIII 

To  favor  commerce  on  both 
sides  it  is  agreed  that,  in  case  a 
war  should  break  out  between 
the  two  nations,  which  God  for- 
bid, the  term  of  six  months  after 
the  declaration  of  war  shall  be 
allowed  to  the  merchants  and 
other  citizens  and  inhabitants  re- 
spectively, on  one  side  and  the 
other,  during  which  time  they 
shall  be  at  liberty  to  withdraw 
themselves,  with  their  effects  and 
moveables,  which  they  shall  be  at 
liberty  to  carry,  send  away,  or 
sell,  as  they  please,  without  the 
least  obstruction ;  nor  shall  their 
effects,  much  less  their  persons, 
be  seized  during  such  term  of  six 
months ;  on  the  contrary,  pass- 
ports, which  shall  be  valid  for  a 
time  necessary  for  their  return, 
shall  be  given  to  them  for  their 
vessels  and  the  effects  which  they 
shall  be  willing  to  send  away  or 
carry  with  them ;  and  such  pass- 
ports shall  be  a  safe  conduct 
against  all  insults  and  prizes 
which  privateers  may  attempt 
against  their  persons  and  effects. 
And  if  anything  be  taken  from 
them,  or  any  injury  done  to  them 
or  their  effects,  by  one  of  the  par- 
ties, their  citizens  or  inhabitants, 
within  the  term  above  prescribed, 
full  satisfaction  shall  be  made  to 
them  on  that  account. 


Article  VIII 

Pour  favoriser  de  part  d'autre 
le  commerce,  il  est  convenu  que  si, 
ce  qu'a  Dieu  ne  plaise,  le  guerre 
eclatait  entre  les  deux  nations,  on 
allouera,  de  part  et  d'autre,  aux 
marchands  et  autres  citoyens  ou 
habitans  respectif  s,  six  mois  apres 
la  declaration  de  guerre,  pendant 
lequel  terns  il  sauront  la  faculte 
de  se  retirer  avec  leurs  effets  et 
meubles  qu'ils  pourront  emmener 
envoyer  ou  vendre,  comme  ils  les 
voudront,  sans  le  moindre  em- 
pechment.  Leurs  effets,  et  encore 
moins  leurs  personnes,  ne  pourront 
point,  pendent  ce  tems  de  six  mois, 
etre  saisis ;  au  contraire,  on  leur 
donnera  des  passeports  qui  seront 
valables  pour  le  tems  necessaire  a 
leur  retour  chez  eux ;  et  ces  passe- 
ports seront  donnes  pour  eux, 
ainsi  que  pour  leur  batimens  et  ef- 
fets qu'ils  desireront  emmener  ou 
envoyer.  Ces  passeports  serviront 
de  sauf-conduit  contre  toute  in- 
sulte  et  contre  toute  capture  de  la 
part  des  corsaires,  tant  contre  eux 
que  contre  leur  effets ;  et  si,  dans 
le  terme  ci-dessus  designe,  il  leur 
etait  fait  par  I'une  des  parties,  ces 
citoyens  ou  ses  habitans,  quelque 
tort  dans  leur  personnes  ou  dans 
leurs  effets,  on  leur  en  donnera 
satisfaction  complete. 


CONVENTION  OF  1800 


495 


Article  IX 

Neither  the  debts  due  from  in- 
dividuals of  the  one  nation  to  in- 
dividuals of  the  other,  nor  shares, 
nor  monies,  which  they  may  have 
in  public  funds,  or  in  the  public 
or  private  banks,  shall  ever,  in 
any  event  of  war  or  of  national 
difference,  be  sequestered  or  con- 
fiscated. 


Article  XI 

Les  dettes  dues  par  des  indi- 
vidus  de  I'une  des  deux  nations 
aux  individus  de  I'autre,  ne  pour- 
ront,  dans  aucun  cas  de  guerre, 
ou  de  demeles  nationaux,  etre  se- 
questrees  ou  confisquees  non  plus 
que  les  actions  ou  fonds  qui  se 
trouveraient  dans  les  fonds  pu- 
blics, au  dans  des  banques  pu- 
bliques  ou  particulieres. 


Article  X 

It  shall  be  free  for  the  two  con- 
tracting parties  to  appoint  com- 
mercial agents  for  the  protection 
of  trade,  to  reside  in  France  and 
the  United  States.  Either  party 
may  except  such  place  as  may  be 
thought  proper  from  the  residence 
of  those  agents.  Before  any  agent 
shall  exercise  his  functions,  he 
shall  be  accepted  in  the  usual 
forms  by  the  party  to  whom  he  is 
sent ;  and  when  he  shall  have  been 
accepted  and  furnished  with  his 
exequatur,  he  shall  enjoy  the 
rights  and  prerogatives  of  the  sim- 
ilar agents  of  the  most  favoured 
nations. 

Article  XI 

The  citizens  of  the  French  Re- 
public shall  pay  in  the  ports, 
havens,  roads,  countries,  islands, 
cities,  and  towns  of  the  United 
States,  no  other  or  greater  duties 
or  imposts,  of  what  nature  soever 


Article  X 

Les  deux  parties  contractantes 
pourront  nommer,  pour  proteger 
le  negoce,  des  agens  commerciaux 
qui  resideront  en  France  et  dans 
les  Etats-Unis ;  chacune  des  par- 
ties pourra  excepter  telle  place 
qu'elle  jugera  a  propos,  des  lieux 
ou  la  residence  de  ces  agens  pourra 
etre  fixee.  Avant  qu'aucun  agent 
puisse  exercer  ses  fonctions,  il 
devra  etre  accepte,  dans  les  formes 
resQues,  par  la  partie  chez  laquelle 
il  est  envoye;  et  quand  il  aura  ete 
accepte  et  pourvu  de  son  Exequa- 
tur, il  jouira  des  droits  et  preroga- 
tives dont  jouiront  les  Agens  sem- 
blables  des  nations  le  plus  favo- 
risees. 

Article  XI 

Les  citoyens  de  la  Republique 
Frangaise  ne  payeront  dans  les 
ports,  havres,  rades,  contrees, 
isles,  cites  et  lieux  des  Etats- 
Unis,  d'autres  ni  de  plus  grands 
droits,  impots  de  quelque  nature 


496   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


they  may  be,  or  by  what  name 
soever  called,  than  those  which 
the  nation  most  favoured  are  or 
shall  be  obliged  to  pay ;  and  they 
shall  enjoy  all  the  rights,  liberties, 
privileges,  immunities,  and  ex- 
emptions in  trade,  navigation,  and 
commerce,  whether  in  passing 
from  one  port  in  the  said  States 
to  another,  or  in  going  to  and 
from  the  same  from  and  to  any 
part  of  the  world,  which  the  said 
nations  do  or  shall  enjoy.  And 
the  citizens  of  the  United  States 
shall  reciprocally  enjoy,  in  the  ter- 
ritories of  the  French  Republic  in 
Europe,  the  same  privileges  and 
immunities,  as  well  for  their  prop- 
erty and  persons  as  for  what  con- 
cerns trade,  navigation,  and  com- 
merce. 


qu'ils  puissent  etre,  quelque  nom 
qu'ils  puissent  avoir,  que  ceux  que 
les  nations  les  plus  favorisees  sont 
ou  seront  tenues  de  payer ;  et  ils 
jouiront  de  tous  les  droits,  liber- 
tes,  privileges,  immunites,  et  ex- 
emptions en  fait  de  negoce,  navi- 
gation et  commerce,  soit  en  pas- 
sant d'un  port  des  dits  Etats  a 
un  autre,  soit  en  y  allant  ou  en 
revenant  de  quelque  partie  ou  pour 
quelque  partie  du  monde  que  ce 
soit,  dont  les  nations  susdites 
jouissent  ou  jouiront.  Et  recipro- 
quement,  les  citoyens  des  Etats- 
Unis  jouiront,  dans  le  Territoire 
de  la  Republique  Frangaise  en  Eu- 
rope, des  memes  privileges,  im- 
munites, tant  pour  leurs  biens  et 
leurs  personnes,  que  pour  ce  qui 
concerne  le  negoce,  la  navigation 
et  le  commerce. 


Article  XII 

It  shall  be  lawful  for  the  citi- 
zens of  either  country  to  sail  with 
their  ships  and  merchandize  (con- 
traband goods  always  excepted) 
from  any  port  whatever  to  any 
port  of  the  enemy  of  the  other, 
and  to  sail  and  trade  with  their 
ships  and  merchandise,  with  per- 
fect security  and  liberty,  from  the 
countries,  ports,  and  places  of 
those  who  are  enemies  of  both,  or 
of  either  party,  without  any  op- 
position or  disturbance  whatso- 
ever, and  to  pass  not  only  directly 
from  the  places  and  ports  of  the 


Article  XII 

Les  citoyens  des  deux  nations 
pourront  conduire  leurs  vaisseaux 
et  marchandises  (en  exceptant 
tou jours  la  contrehande)  de  tout 
port  quelconque,  dans  un  autre 
port  appartenant  a  I'ennemi  de 
I'autre  nation ;  ils  pourront  navi- 
guer  et  commercer  en  toute  liberte 
et  securite,  avec  leurs  navire  set 
marchandises,  dans  les  pays,  ports 
et  places  des  ennemis  des  deux 
parties  ou  de  I'une  ou  de  I'autre 
partie,  sans  obstacles  et  sans  en- 
traves,  et  non  seulement  passer  di- 
rectement  des  places  et  ports  de 


CONVENTION  OF  1800 


497 


enemy  aforementioned  to  neutral 
ports  and  places,  but  also  from 
one  place  belonging  to  an  enemy 
to  another  place  belonging  to  an 
enemy,  whether  they  be  under  the 
jurisdiction  of  the  same  Power  or 
under  the  several,  unless  such 
ports  or  places  shall  be  actually 
blockaded,  besieged,  or  invested. 

And  whereas  it  frequently  hap- 
pens that  vessels  sail  for  a  port  or 
place  belonging  to  an  enemy  with- 
out knowing  that  the  same  is 
either  besieged,  blockaded,  or  in- 
vested, it  is  agreed  that  every  ves- 
sel so  circumstanced  may  be 
turned  away  from  such  port  or 
place,  but  she  shall  not  be  de- 
tained, nor  any  part  of  her  cargo, 
if  not  contraband,  be  confiscated, 
unless,  after  notice  of  such  block- 
ade or  investment,  she  shall  again 
attempt  to  enter;  but  she  shall  be 
permitted  to  go  to  any  other  port 
or  place  she  shall  think  proper. 
Nor  shall  any  vessel  of  either  that 
may  have  entered  into  such  port 
or  place  before  the  same  was  ac- 
tually besieged,  blockaded,  or  in- 
vested by  the  other,  be  restrained 
from  quitting  such  place  with  her 
cargo,  nor  if  found  therein  after 
the  reduction  and  surrender  of 
such  place  shall  such  vessel  or  her 
cargo  be  liable  to  confiscation,  but 
they  shall  be  restored  to  the  own- 
ers thereof. 


I'ennemi  sus  mentionnes,  dans  les 
ports  et  places  neutres,  mais  en- 
core de  toute  place  appartenant  a 
un  ennemi  dans  toute  autre  place 
appartenant  a  un  ennemi,  qu'elle 
soit  ou  ne  soit  pas  soumise  a  la 
meme  jurisdiction,  a  moins  que 
ces  places  ou  ports  ne  soyent 
reellement  bloques,  assieges  ou  in- 
vestis. 

Et  dans  le  cas,  comme  il  arrive 
souvent,  ou  les  vaisseaux  feraient 
voile  pour  une  place  ou  port  ap- 
partenant a  un  ennemi,  ignorant 
qu'ils  sont  blocques,  assieges  ou 
investis,  il  est  convenu  que  tout 
navire  qui  se  trouvera  dans  une 
pareille  circonstance,  sera  detourne 
de  cette  place  ou  port,  sans  qu'on 
puisse  le  retener  ni  confisquer  au- 
cune  partie  de  sa  cargaison  (a 
moins  qu'elle  ne  soit  de  contre- 
bande,  ou  qu'il  ne  soit  prouvee 
que  le  dit  navire,  apres  avoir  ete 
averti  du  blocus  ou  investissement, 
a  roulu  rentrer  dans  ce  meme 
port) ;  mais  il  lui  sera  permis  d'al- 
ler  dans  tout  autre  port  ou  place, 
qu'il  jugera  convenable.  Aucun 
navire  de  Tune  ou  de  I'autre  na- 
tion, entre  dans  un  port  au  place 
avant  qu'ils  ayent  ete  reellement 
bloques,  assieges  ou  investis  par 
I'autre,  ne  pourra  etre  empeche  de 
sortir  avec  sa  cargaison :  s'il  s'y 
trouve,  lorsque  la  dite  place  sera 
rendue.  le  navire  et  sa  cargaison 
ne  pourront  etre  confisques,  mais 
seront  remis  aux  proprietaires. 


498   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


Article   XIII 

In  order  to  regulate  what  shall 
be  deemed  contraband  of  war, 
there  shall  be  comprised,  under 
that  denomination,  gun-powder, 
saltpetre,  petards,  match,  ball, 
bombs,  grenades,  carcasses,  pikes, 
halberts,  swords,  belts,  pistols, 
holsters,  cavalry-saddles  and  fur- 
niture, cannon,  mortars,  their  car- 
riages and  beds,  and  generally  all 
kinds  of  arms,  ammunition  of 
war,  and  instruments  fit  for  the 
use  of  troops ;  all  the  above  arti- 
cles, whenever  they  are  destined 
to  the  port  of  an  enemy,  are  here- 
by declared  to  be  contraband,  and 
just  objects  of  confiscation ;  but 
the  vessel  in  which  they  are  laden, 
and  the  residue  of  the  cargo,  shall 
be  considered  free,  and  not  in  any 
manner  infected  by  the  prohibited 
goods,  whether  belonging  to  the 
same  or  a  different  owner. 


Article  XIII 

Pour  regler  ce  qu'on  entendra 
par  contrebande  de  guerre,  seront 
compris  sous  cette  denomination 
la  poudre,  le  salpetre,  les  petards, 
meches,  balles,  boulets,  bombes, 
grenades,  carcasses,  piques,  halle- 
bardes,  epees,  ceinturons,  pistolets, 
foureaux,  selles  de  cavalerie,  har- 
nais,  canons,  mortiers  avec  leurs 
affuts,  et  generalement  toutes  ar- 
mes  et  munitions  de  guerre  et  un- 
tensiles,  a  I'usage  des  troupes. 
Tous  les  articles  ci-dessus,  toutes 
les  fois  qu'ils  seront  destines  pour 
le  port  d'un  ennemi,  sont  declares 
de  contrabande  et  justement  sou- 
mis  a  la  confiscation.  Mais  le 
batiment  sur  lequel  ils  etaient 
charges,  ainsi  que  le  reste  de  la 
cargaison,  seront  regardes  comme 
libres,  et  ne  pourront  en  aucune 
maniere  etre  vicies  par  les  mar- 
chandises  de  contrebande,  soit 
qu'ils  appartiennent  a  un  meme  ou 
a  differens  proprietaires. 


Article  XIV 

It  is  hereby  stipulated  that  free 
ships  shall  give  a  freedom  to 
goods,  and  that  everything  shall 
be  deemed  to  be  free  and  exempt 
which  shall  be  found  on  board  the 
ships  belonging  to  the  citizens  of 
either  of  the  contracting  parties, 
although  the  whole  lading,  or  any 
part  thereof,  should  appertain  to 
the  enemies  of  either,  contraband 


Article  XIV 

II  est  stipule  par  le  present 
traite  que  les  batimens  libres  as- 
sureront  egalement  la  liberte  des 
marchandises,  et  qu'on  jugera  li- 
bres toutes  les  choses  qui  se  trou- 
veront  a  bord  des  navires  apparte- 
nant  aux  citoyens  d'une  des  parties 
contractantes,  quand  meme  le 
chargement  ou  partie  d'icelui  ap- 
partiendrait  aux  ennemis  de  I'une 


CONVENTION  OF  1800 


499 


goods  being  always  excepted.  It 
is  also  agreed,  in  like  manner,  that 
the  same  liberty  be  extended  to 
persons  who  are  on  board  a  free 
ship,  with  this  effect,  that  al- 
though they  be  enemies  to  either 
party,  they  are  not  to  be  taken  out 
of  that  free  ship,  unless  they  are 
soldiers  and  in  actual  service  of 
the  enemy. 


des  deux ;  bien  entendu  neanmoins 
que  la  contrebande  sera  tou jours 
excepte.  II  est  egalement  convenu 
que  cette  meme  liberte  s'etendra 
aux  personnes  qui  pourraient  se 
trouver  a  bard  du  batimen  libre, 
quand  meme  elles  seraient  enne- 
mies  de  I'une  de  deux  parties  con- 
tractantes,  et  elles  ne  pourront 
etre  enlevees  des  dits  navires  li- 
bres,  a  moins  qu'elles  ne  soyent 
militaires  et  actuellement  au  ser- 
vice de  I'ennemi. 


Article  XV 

On  the  contrary,  it  is  agreed 
that  whatever  shall  be  found  to 
be  laden  by  the  citizens  of  either 
party  on  any  ship  belonging  to  the 
enemies  of  the  other,  or  their  citi- 
zens, shall  be  confiscated  without 
distinction  of  goods,  contraband 
or  not  contraband,  in  the  same 
manner  as  if  it  belonged  to  the 
enemy,  except  such  goods  and 
merchandizes  as  were  put  on 
board  such  ship  before  the  declar- 
ation of  war,  or  even  after  such 
declaration,  if  so  be  it  were  done 
without  knowledge  of  such  dec- 
laration ;  so  that  the  goods  of  the 
citizens  of  either  party,  whether 
they  be  of  the  nature  of  such  as 
are  prohibited,  or  otherwise, 
which,  as  is  aforesaid,  were  put 
on  board  any  ship  belonging  to 
an  enemy  before  the  war,  or  after 
the  declaration  of  the  same,  with- 


Article  XV 

On  est  convenu,  au  contraire 
que  tout  ce  qui  se  trouvera  charge 
par  les  citoyens  respectifs,  sur  des 
navires  appartenant  aux  ennemis 
de  I'autre  partie  ou  a  leurs  sujets, 
sera  confisque,  sans  distinctions 
des  marchandises  prohibees  ou 
non  prohibees,  ainsi  et  de  meme 
que  si  elles  appartenaient  a  I'en- 
nemi, a  I'exception  toutefois  des 
effets  et  marchandises  qui  auront 
ete  mis  a  bord  des  dits  navires 
avant  la  declaration  de  guerre,  ou 
meme  apres  la  dite  declaration,  si, 
au  moment  du  chargement,  on  a 
pu  I'ignorer ;  de  maniere  que  les 
marchandises  des  citoyens  des 
deux  parties,  soit  qu'elles  se  trou- 
vent  du  nombre  de  celles  de  con- 
trebande ou  autrement,  lesquelles, 
comme  il  vient  d'etre  dit,  auront 
ete  mises  a  bord  d'un  vaisseau  ap- 
partenant   a    I'ennemi    avant    la 


500   TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


out  the  knowledge  of  it,  shall  no 
ways  be  liable  to  confiscation,  but 
shall  well  and  truly  be  restored 
without  delay  to  the  proprietors 
demanding  the  same ;  but  so  as 
that  if  the  said  merchandizes  be 
contraband,  it  shall  not  be  any 
ways  lawful  to  carry  them  after- 
wards to  any  ports  belonging  to 
the  enemy.  The  two  contracting 
parties  agree  that  the  term  of  two 
months  being  passed  after  the 
declaration  of  war,  their  respec- 
tive citizens,  from  whatever  part 
of  the  world  they  come,  shall  not 
plead  the  ignorance  mentioned  in 
this  article. 


Article  XVI 

The  merchant  ships  belonging 
to  the  citizens  of  either  of  the  con- 
tracting parties,  which  shall  be 
bound  to  a  port  of  the  enemy  of 
one  of  the  parties,  and  concern- 
ing whose  voyage  and  the  articles 
of  their  cargo  there  shall  be  just 
grounds  of  suspicion,  shall  be  ob- 
liged to  exhibit,  as  well  upon  the 
high  seas  as  in  the  ports  or  roads, 
not  only  their  passports,  but  like- 
wise their  certificates,  showing 
that  their  goods  are  not  of  the 
quality  of  those  which  are  speci- 
fied to  be  contraband  in  the  thir- 
teenth article  of  the  present  con- 
vention. 


guerre,  ou  meme  apres  la  dite  de- 
claration lorsqu'on  I'ignorait,  ne 
seront,  en  aucune  maniere,  sujet- 
tes  a  confiscation,  mais  seront 
fidelement  et  de  bonne  foi  rendues, 
sans  delai,  a  leurs  proprietaires  qui 
les  reclameront ;  bien  entendu 
neanmoins  qu'il  ne  soit  pas  permis 
de  porter  dans  les  ports  ennemis 
les  marchandises  qui  seront  de 
contrebande.  Les  deux  parties 
contractantes  conviennent  que  le 
terme  de  deux  mois  passe  depuis 
la  declaration  de  guerre,  leurs  cito- 
yens  respectifs,  de  quelque  partie 
du  monde  qu'ils  viennent,  ne  pour- 
ront  plus  alleguer  I'ignorance  dont 
il  est  question  dans  le  present 
article. 

Article  XVI 

Les  navires  marchands  appar- 
tenant  a  des  citoyens  de  I'une  ou 
d'autre  des  deux  parties  contrac- 
tantes, lorsqu'ils  voudront  passer 
dans  le  port  de  I'ennemi  de  I'une 
des  deux  parties,  et  que  leur  vo- 
yage ainsi  que  les  effets  de  leur 
cargaison  pourront  donner  de  jus- 
tes  soupQons,  les  dits  navires  se- 
ront obliges  d'exhiber  en  pleine 
mer,  comme  dans  les  ports  ou 
rades,  non  seulement  leurs  passe- 
ports,  mais  encore  leurs  certifi- 
cats  prouvant  que  ces  efifets  ne 
sont  point  de  la  meme  espece  que 
ceux  de  contrebande  specifies  dans 
I'article  treize  de  la  presente  con- 
vention. 


CONVENTION  OF  1800 


501 


Article  XVII 

And  that  captures  on  light  sus- 
picions may  be  avoided,  and  in- 
juries thence  arising  prevented,  it 
is  agreed  that  when  one  party- 
shall  be  engaged  in  v^^ar,  and  the 
other  party  be  neuter,  the  ships  of 
the  neutral  party  shall  be  fur- 
nished M^ith  passports  similar  to 
that  described  in  the  fourth  arti- 
cle, that  it  may  appear  thereby 
that  the  ships  really  belong  to  the 
citizens  of  the  neutral  party ;  they 
shall  be  valid  for  any  number  of 
voyages,  but  shall  be  renewed 
every  year;  that  is,  if  the  ship 
happens  to  return  home  in  the 
space  of  a  year.  If  the  ships  are 
laden,  they  shall  be  provided  not 
only  with  the  passports  above 
mentioned,  but  also  with  certifi- 
cates similar  to  those  described  in 
the  same  article,  so  that  it  may  be 
known  whether  they  carry  any 
contraband  goods.  No  other  paper 
shall  be  required,  any  usage  or 
ordinance  to  the  contrary  notwith- 
standing. And  if  it  shall  not  ap- 
pear from  the  said  certificates  that 
there  are  contraband  goods  on 
board,  the  ships  shall  be  permitted 
to  proceed  on  their  voyage.  If  it 
shall  appear  from  the  certificates 
that  there  are  contraband  goods 
on  board  any  such  ship,  and  the 
commander  of  the  same  shall  oflFer 
to  deliver  them  up,  the  offer  shall 
be  accepted,  and  the  ship  shall  be 
at  liberty  to  pursue  its  voyage,  un- 


Article  XVII 

Et  afin  d'eviter  des  captures  sur 
des  soupgons  frivoles,  et  de  pre- 
venir  les  dommages  qui  en  resul- 
tent,  il  est  convenu  que,  quand  une 
des  deux  parties  sera  en  guerre 
et  I'autre  neutre,  les  navires  de  la 
partie  neutre  seront  pourvus  de 
passeports  semblables  a  ceux  spe- 
cifies dans  I'article  quatre,  de  ma- 
niere  qu'il  puisse  par  la  apparaitre 
que  les  navires  appartiennent  veri- 
tablement  a  la  partie  neutre.  Ces 
passeports  seront  valides  pour  un 
nombre  quelconque  de  voyages ; 
mais  il  seront  renouvelles  chaque 
annee,  si  le  navire  retourne  chez 
lui  dans  I'espace  d'une  annee.  Si 
ces  navires  sont  charges,  il  seront 
pourvus  non  seulement  des  passe- 
ports sus  mentionnes  mais  aussi 
de  certificats  semblables  a  ceux 
mentionnes  au  meme  article,  de 
maniere  que  Ton  puisse  connaitre 
s'il  y  a  a  bord  des  marchandises 
de  contrebande.  II  ne  sera  exige 
aucune  autre  piece,  non  obstant 
tous  usages  et  reglemens  con- 
traires ;  et  s'il  n'apparait  pas  par 
ces  certificats  qu'il  y  ait  des  mar- 
chandises de  contrebande  a  bord, 
les  navires  seront  laisses  a  leur 
destination.  Si,  au  contraire,  il  ap- 
parait,  par  ces  certificats,  que  les 
dits  navires  ayent  des  marchan- 
dises de  contrebande  a  bord,  et 
que  le  commandant  offre  de  les  de- 
livrer,  I'offre  sera  acceptee,  et  le 
navire    sera    remis    en    liberte    de 


502  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


less  the  quantity  of  the  contraband 
goods  be  greater  than  can  conve- 
niently be  received  on  board  the 
ship  of  war  or  privateer,  in  which 
case  the  ship  may  be  carried  into 
port  for  the  delivery  of  the  same. 


If  any  ship  shall  not  be  fur- 
nished with  such  passport  or  cer- 
tificates as  are  above  required  for 
the  same,  such  case  may  be  ex- 
amined by  a  proper  judge  or  tri- 
bunal, and  if  it  shall  appear  from 
other  documents  or  proofs  ad- 
missible by  the  usage  of  nations, 
that  the  ship  belongs  to  the  citi- 
zens of  the  neutral  party,  it  shall 
not  be  confiscated,  but  shall  be 
released  with  her  cargo  (contra- 
band goods  excepted)  and  be  per- 
mitted to  proceed  on  her  voyage. 

If  the  master  of  a  ship  named  in 
the  passport  should  happen  to  die, 
or  be  removed  by  any  other  cause, 
and  another  put  in  his  place,  the 
ship  and  cargo  shall  nevertheless 
be  equally  secure,  and  the  passport 
remain  in  full  force. 


poursuivre  son  voyage ;  a  moms 
que  la  quantite  de  marchandises 
de  contrebande  ne  soit  trop  grande 
pour  pouvoir  etre  prise  convena- 
blement  a  bord  du  vaisseau  de 
guerre  ou  corsaire ;  dans  ce  cas  le 
navire  pourra  etre  amene  dans  le 
port  pour  y  delivrer  la  dite  mar- 
chandise. 

Si  un  navire  est  trouve  sans 
avoir  le  passeport  ou  les  certifi- 
cats  ci-dessus  exiges,  I'affaire  sera 
examinee  par  les  juges  ou  tribu- 
naux  competens ;  et  s'il  conste  par 
d'autres  documens  ou  preuves  ad- 
missibles  par  I'usage  des  nations, 
que  le  navire  appartient  a  des  cito- 
yens  de  la  partie  neutre,  il  ne  sera 
pas  condamne,  et  il  sera  remis  en 
liberte  avec  son  chargement,  la 
contrebande  exceptee,  et  aura  la 
liberte  de  poursuivre  sa  route. 

Si  le  capitaine  nomme  dans  le 
passeport  du  navire  venait  a  mou- 
rir,  ou  a  etre  ote  par  toute  autre 
cause,  et  qu'un  autre  fut  nomme 
a  sa  place,  le  navire  et  sa  car- 
gaison  n'en  seront  pas  moins  en 
siirete,  et  le  passeport  demeurera 
dans  toute  sa  force. 


Article  XVIII 

If  the  ships  of  the  citizens  of 
either  of  the  parties  shall  be  met 
with,  either  sailing  along  the 
coasts  or  on  the  high  seas,  by  any 
ship  of  war  or  privateer  of  the 
other,    for    the    avoiding    of    any 


Article  XVIII 

Si  les  batimens  des  citoyens  de 
Tune  ou  I'autre  nation  sont  ren- 
contres le  long  des  cotes,  ou  en 
pleine  mer,  par  quelques  vaisseaux 
de  guerre  ou  corsaires  de  I'autre ; 
pour  prevenir  tout   desordre,   les 


CONVENTION  OF  1800 


503 


disorder  the  said  ships  of  war  or 
privateers  shall  remain  out  of 
cannon-shot,  and  may  send  their 
boats  on  board  the  merchant  ship 
which  they  shall  so  meet  with,  and 
may  enter  her  to  the  number  of 
two  or  three  men  only,  to  whom 
the  master  or  commander  of  such 
ship  shall  exhibit  his  passport  con- 
cerning the  property  of  the  ship, 
made  out  according  to  the  form 
prescribed  in  the  fourth  article. 
And  it  is  expressly  agreed  that  the 
neutral  party  shall  in  no  case  be 
required  to  go  on  board  the  ex- 
amining vessel  for  the  purpose  of 
exhibiting  his  papers,  or  for  any 
other  examination  whatever. 


Article    XIX 

It  is  expressly  agreed  by  the 
contracting  parties  that  the  stipu- 
lations above  mentioned,  relative 
to  the  conduct  to  be  observed  on 
the  sea  by  the  cruisers  of  the  bel- 
ligerent party  towards  the  ships 
of  the  neutral  party,  shall  be  ap- 
plied only  to  ships  sailing  without 
convoy ;  and  when  the  said  ships 
shall  be  convoyed,  it  being  the  in- 
tention of  the  parties  to  observe 
all  the  regard  due  to  the  protec- 
tion of  the  flag  displayed  by  pub- 
lic ships,  it  shall  not  be  lawful  to 
visit  them ;  but  the  verbal  dec- 
laration of  the  commander  of  the 
convoy,  that  the  ships  he  convoys 
belong  to  the  nation  whose  flag  he 


dits  vaisseaux  ou  corsaires  se  tien- 
dront  hors  de  la  portee  du  canon 
et  enverront  leur  canot  a  bord  du 
navire  marchand  qu'ils  auront  ren- 
contre: ils  n'y  pourront  entrer 
qu'au  nombre  de  deux  ou  trois 
hommes,  et  demander  au  patron 
ou  capitaine  du  dit  navire,  exhibi- 
tion du  passeport  concernant  la 
propriete  du  dit  navire,  fait 
d'apres  la  formula  prescrite  dans 
I'article  quatre,  ainsi  que  les  cer- 
tificats  sus  mentionnes  relatifs  a  la 
cargaison.  II  est  expressement 
convenu  que  le  neutre  ne  pourra 
etre  contraint  d'aller  a  bord  du 
vaisseau  visitant  pour  y  faire  I'ex- 
hibition  demandee  des  papiers  ou 
pour  toute  autre  information  quel- 
conque. 

Article  XIX 

II  est  expressement  convenu  par 
les  parties  contractantes,  que  les 
stipulations  ci-dessus,  relatives  a 
la  conduite  qui  sera  tenue  a  la 
mer  par  les  croiseurs  de  la  partie 
belligerante,  envers  les  batimens 
de  la  partie  neutre,  ne  s'applique- 
ront  qu'aux  batimens  naviguant 
sans  convoi ;  et  dans  le  cas  ou  les 
dits  batimens  seraient  convoyes, 
Tintention  des  parties  etant  d'ob- 
server  tons  les  egards  dus  a  la  pro- 
tection du  pavilion  abore  sur  les 
vaisseaux  publics,  on  ne  pourra 
point  en  faire  la  visite.  Mais  la 
declaration  verbale  du  comman- 
dant de  I'escorte,  que  les  navires 
de  son  convoi  appartiennent  a  la 


504  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


carries,  and  that  they  have  no 
contraband  goods  on  board,  shall 
be  considered  by  the  respective 
cruisers  as  fully  sufficient,  the  two 
parties  reciprocally  engaging  not 
to  admit,  under  the  protection  of 
their  convoys,  ships  which  shall 
carry  contraband  goods  destined 
to  an  enemy. 


nation  dont  ils  portent  le  pavilion, 
et  qu'ils  n'ont  aucune  contrabande 
a  bord,  sera  regardee  par  les  croi- 
seurs  respectifs  comme  pleine- 
ment  suffisante ;  les  deux  parties 
s'engageant  reciproquement  a  ne 
point  admettre  sous  la  protection 
de  leur  convoi,  des  batimens  qui 
porteraient  des  marchandises  pro- 
hibees  a  une  destination  ennemie. 


Article  XX 

In  all  cases  where  vessels  shall 
be  captured  or  detained,  under 
pretence  of  carrying  to  the  enemy 
contraband  goods,  the  captor  shall 
give  a  receipt  for  such  of  the 
papers  of  the  vessel  as  he  shall 
retain,  which  receipt  shall  be  an- 
nexed to  a  descriptive  list  of  the 
said  papers  ;  and  it  shall  be  unlaw- 
ful to  break  up  or  open  the 
hatches,  chests,  trunks,  casks, 
bales,  or  vessels  found  on  board, 
or  remove  the  smallest  part  of  the 
goods,  unless  the  lading  be  brought 
on  shore  in  presence  of  the  com- 
petent officers,  and  an  inventory 
be  made  by  them  of  the  said 
goods ;  nor  shall  it  be  lawful  to 
sell,  exchange,  or  alienate  the 
same  in  any  manner,  unless  there 
shall  have  been  lawful  process, 
and  the  competent  judge  or  judges 
shall  have  pronounced  against 
such  goods  sentence  of  confisca- 
tion, saving  always  the  ship  and 
the  other  goods  which  it  contains. 


Article  XX 

Dans  le  cas  ou  les  batimens  se- 
ront  pris  ou  arretes,  sous  pretexte 
de  porter  a  I'ennemi  quelqu'article 
de  contrebande,  le  capteur  donnera 
un  recu  des  papiers  du  batiment 
qu'il  retiendra,  lequel  regu  sera 
joint  a  une  liste  enonciative  des 
dits  papiers :  il  ne  sera  point  per- 
mis  de  forcer  ni  d'ouvrir  les  ecou- 
tilles,  cofif res,  caisses,  caissons,  bal- 
les,  ou  vases  trouves  a  bord  du  dit 
navire,  ni  d'enlever  la  moindre 
chose  des  effets,  avant  que  la  car- 
gaison  ait  ete  debarquee  en  pre- 
sence des  officiers  competens,  qui 
f  eront  un  inventaire  des  dits  efTet ; 
ils  ne  pourront,  en  aucune  maniere 
etre  vendus,  echanges  ou  alienes,  a 
moins  qu'apres  une  procedure  le- 
gale, le  juge  ou  les  juges  compe- 
tens n'ayent  porte  centre  les  dits 
effets  sentence  de  confiscation  (en 
exceptant  toujours  le  navire  et 
les  autres  ohjets  qu'il  contient.) 


CONVENTION  OF  1800 


505 


Article  XXI 

And  that  proper  care  may  be 
taken  of  the  vessel  and  cargo,  and 
embezzlement  prevented,  it  is 
agreed  that  it  shall  not  be  lawful 
to  remove  the  master,  comman- 
der, or  supercargo  of  any  cap- 
tured ship  from  on  board  thereof, 
either  during  the  time  the  ship 
may  be  at  sea  after  her  capture, 
or  pending  the  proceedings 
against  her  or  her  cargo,  or  any- 
thing relative  thereto.  And  in  all 
cases  where  a  vessel  of  the  citi- 
zens of  either  party  shall  be  cap- 
tured or  seized,  and  held  for  ad- 
judication, her  officers,  passengers, 
and  crew  shall  be  hospitably 
treated.  They  shall  not  be  im- 
prisoned or  deprived  of  any  part 
of  their  wearing  apparel,  nor  of 
the  possession  and  use  of  their 
money,  not  exceeding  for  the  cap- 
tain, supercargo,  and  mate  five 
hundred  dollars  each,  and  for  the 
sailors  and  passengers  one  hun- 
dred dollars  each. 


Article  XXI 

Pour  que  le  batiment  et  la  car- 
gaison  soyent  surveilles  avec  soin, 
et  pour  empecher  les  degats,  il  est 
arrete  que  le  patron,  capitaine  ou 
subrecargue  du  navire  capture,  ne 
pourront  etre  eloignes,  du  bord, 
soit  pendant  que  le  navire  sera  en 
mer,  apres  avoir  ete  pris,  soit 
pendant  les  procedures  qui  pour- 
ront avoir  lieu  contre  lui,  sa  car- 
gaison  ou  quelque  chose  y  relative. 

Dans  le  cas  ou  le  navire  appar- 
tenant  a  des  citoyens  de  I'une  ou 
de  I'autre  partie  serait  pris,  saisi  et 
retenu  pour  etre  juge,  ses  officiers, 
passagers  et  equipage  seront 
traites  avec  humanite ;  ils  ne  pour- 
ront etre  emprisonnes,  ni  depouil- 
les  de  leurs  vetemens,  ni  de  I'ar- 
gent  a  leur  usage,  qui  ne  pourra 
exceder,  pour  le  capitaine,  le  sub- 
recargue, et  le  second,  cinq  cents 
dollars  chacun ;  et  pour  les  mate- 
lots  et  passagers,  cent  dollars  cha- 
cun. 


Article  XXII 

It  is  further  agreed  that  in  all 
cases  the  established  courts  for 
prize  causes,  in  the  country  to 
which  the  prizes  may  be  con- 
ducted, shall  alone  take  cognizance 
of  them.  And  whenever  such  tri- 
bunal of  either  of  the  parties  shall 
pronounce  judgment  against  any 
vessel     or     goods,     or     property 


Article  XXII 

II  est  de  plus  convenu  que  dans 
tons  les  cas,  les  tribunaux  etablis 
pour  les  causes  de  prises  dans  les 
pays  oil  les  prises  seront  conduites, 
pourront  seuls  en  prendre  connais- 
sance ;  et  quelques  jugement  que 
le  tribunal  de  I'une  ou  de  I'autre 
partie  prononce  contre  quelques 
navires  ou  marchandises  ou  pro- 


506  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


claimed  by  the  citizens  of  the 
other  party,  the  sentence  or  decree 
shall  mention  the  reasons  or  mo- 
tives on  which  the  same  shall  have 
been  founded,  and  an  authenti- 
cated copy  of  the  sentence  or 
decree,  and  of  all  the  proceedings 
in  the  case,  shall,  if  demanded,  be 
delivered  to  the  commander  or 
agent  of  the  said  vessel,  without 
any  delay,  he  paying  the  legal 
fees  for  the  same. 


prietes  reclamees  par  des  citoyens 
de  I'autre  partie,  la  sentence  ou 
decret  fera  mention  des  raisons 
ou  motifs  qui  ont  determine  ce 
jugement,  dont  copie  authentique, 
ainsi  que  de  toute  la  procedure  y 
relative,  sera,  a  leur  requisition, 
delivree,  sans  delai,  au  capitaine 
ou  agent  du  dit  navire,  moyennant 
le  payement  des  frais. 


Article  XXIII 

And  that  more  abundant  care 
may  be  taken  for  the  security  of 
the  respective  citizens  of  the  con- 
tracting parties,  and  to  prevent 
their  suffering  injuries  by  the 
men-of-war  or  privateers  of  either 
party,  all  commanders  of  ships  of 
war  and  privateers,  and  all  others 
the  said  citizens,  shall  forbear  do- 
ing any  damaage  to  those  of  the 
other  party,  or  committing  any 
outrage  against  them,  and  if  they 
act  to  the  contrary  they  shall  be 
punished,  and  shall  also  be  bound 
in  their  persons  and  estates  to 
make  satisfaction  and  reparation 
for  all  damages  and  the  interest 
thereof,  of  whatever  nature  the 
said  damages  may  be. 

For  this  cause  all  commanders 
of  privateers,  before  they  receive 
their  commissions,  shall  hereafter 
be  obliged  to  give,  before  a  com- 
petent judge,  sufficient  security  by 


Article  XXIII 

Et  afin  de  pourvoir  plus  effi- 
cacement  a  la  surete  respective 
des  citoyens  des  deux  parties  con- 
tractantes,  et  prevenir  les  torts 
qu'ils  auraient  a  craindre  des  vais- 
seaux  de  guerre  ou  corsaires,  de 
Tune  ou  I'autre  partie,  tous  com- 
mandans  des  vaisseaux  de  guerre 
et  de  corsaires,  et  tous  autres  cito- 
yens de  Tune  des  deux  parties, 
s'abstiendront  de  tout  dommage 
envers  les  citoyens  de  I'autre  et 
de  toute  insulte  envers  leurs  per- 
sonnes.  S'ils  faisaient  le  contraire, 
ils  seront  punis,  et  tenus  a  donner, 
dans  leurs  personnes  et  proprietes, 
satisfaction  et  reparation  pour  les 
dommages,  avec  interet,  de  quel- 
que  espece  que  soyent  les  dits  dom- 
mages. 

A  cet  efifet,  tous  capitaines  de 
corsaires,  avant  de  recevoir  leurs 
commissions,  s'obligeront,  devant 
un  juge  competent,  a  donner  une 
garantie  au  moins  par  deux  cau- 


CONVENTION  OF  1800 


507 


at  least  two  responsible  sureties 
who  have  no  interest  in  the  said 
privateer,  each  of  whom,  together 
with  the  said  commander,  shall  be 
jointly  and  severally  bound  in  the 
sum  of  seven  thousand  dollars  or 
thirty-six  thousand  eight  hundred 
and  twenty  francs,  or  if  such  ships 
be  provided  with  above  one  hun- 
dred and  fifty  seamen  or  soldiers, 
in  the  sum  of  fourteen  thousand 
dollars,  or  seventy-three  thousand 
six  hundred  and  forty  francs,  to 
satisfy  all  damages  and  injuries 
which  the  said  privateer,  or  her 
officers,  or  men,  or  any  of  them, 
may  do  or  commit  during  their 
cruise,  contrary  to  the  tenor  of 
this  convention,  or  to  the  laws  and 
instructions  for  regulating  their 
conduct ;  and  further,  that  in  all 
cases  of  aggression  the  said  com- 
mission shall  be  revoked  and  an- 
nulled. 


tions  responsables,  lesquelles  n'au- 
ront  aucun  interet  sur  le  dit  cor- 
saire,  et  dont  chacune,  ainsi  que 
le  capitaine,  s'engagera  particu- 
lierement  et  solidairement  pour  la 
somme  de  sept  mille  dollars  ou 
trente  six  mille  huit  cent  vingt 
francs;  et  si  les  dits  vaisseaux 
portent  plus  de  cent  cinquante 
Matelots  ou  Soldats,  pour  la  som- 
me de  quatorze  mille  dollars  ou 
soixante  treize  mille  six  cent  quar- 
ante  francs,  qui  serviront  a  reparer 
les  torts  ou  dommages  que  les  dits 
corsaires,  leurs  officiers,  equipages 
ou  quelqu'un  d'eux  auraient  fait 
ou  commis  pendant  leur  croisiere, 
de  contraire  aux  dispositions  de  la 
presente  convention,  ou  aux  lois  et 
instructions  qui  devront  etre  la 
regie  de  leur  conduite :  en  outre, 
les  dites  commissions  seront  revo- 
quees  et  annullees  dans  tous  les  cas 
oil  il  y  aura  en  aggression. 


Article  XXIV 

When  the  ships  of  war  of  the 
two  contracting  parties,  or  those 
belonging  to  their  citizens  which 
are  armed  in  war,  shall  be  admit- 
ted to  enter  with  their  prizes  the 
ports  of  either  of  the  two  parties, 
the  said  public  or  private  ships,  as 
well  as  their  prizes,  shall  not  be 
obliged  to  pay  any  duty  either  to 
the  officers  of  the  place,  the 
judges,  or  any  others ;  nor  shall 
such  prizes,  when  they  come  to 


Article  XXIV 

Lorsque  les  vaisseaux  de  guerre 
des  deux  parties  contractantes,  ou 
ceux  que  levirs  citoyens  auraient 
armes  en  guerre,  seront  admis  a 
relacher,  avec  leurs  prises,  dans  les 
ports  de  I'une  des  deux  parties, 
les  dits  vaisseaux  publics  ou  par- 
ticuliers,  de  meme  que  leurs  prises, 
ne  seront  obliges  a  payer  aucun 
droit,  soit  aux  officiers  du  lieu,  soit 
aux  juges  ou  a  tous  autres ;  les 
dites  prises  entrant  dans  les  havres 


508  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


and  enter  the  ports  of  either  party, 
be  arrested  or  seized,  nor  shall  the 
officers  of  the  place  make  exami- 
nation concerning  the  lawfulness 
of  such  prizes;  but  they  may 
hoist  sail  at  any  time  and  depart, 
and  carry  their  prizes  to  the  places 
expressed  in  their  commissions, 
which  the  commanders  of  such 
ships  of  war  shall  be  obliged  to 
shew.  It  is  always  understood 
that  the  stipulations  of  this  article 
shall  not  extend  beyond  ths  privi- 
leges of  the  most  favored  i/ation. 

Article  XXV 

It  shall  not  be  lawful  for  any 
foreign  privateers  who  have  com- 
missions from  any  Prince  or  State 
in  enmity  with  either  nation,  to  fit 
their  ships  in  the  ports  of  either 
nation,  to  sell  their  prizes,  or  in 
any  manner  to  exchange  them ; 
neither  shall  they  be  allowed  to 
purchase  provisions,  except  such 
as  shall  be  necessary  for  their  go- 
ing to  the  next  port  of  that  Prince 
or  State  from  which  they  have 
received  their  commissions. 


ou  ports  de  Tune  des  deux  parties, 
ne  pourront  etre  arretees  ou  sai- 
sies,  et  les  officiers  des  lieux  ne 
pourront  prendre  connaissance  de 
la  validite  des  dites  prises,  les- 
quelles  pourront  sortir  et  etre  con- 
duites  en  toute  franchise  et  liberte 
aux  lieux  portes  par  les  commis- 
sions dont  les  capitaines  des  dits 
vaisseaux  seront  obliges  de  faire 
apparoir.  II  est  tou jours  entendu 
que  les  stipulations  de  cet  article 
ne  s'etendront  pas  au  dela  des 
privileges  des  nations  les  plus  fa- 
vorisees. 

Article  XXV 

Tous  corsaires  etrangers  ayant 
des  commissions  d'un  Etat  ou 
Prince  en  guerre  avec  I'une  ou 
I'autre  nation,  ne  pourront  armer 
leurs  vaisseaux  dans  les  ports  de 
Tune  ou  I'autre  nation,  non  plus 
qu'y  vendre  leurs  prises,  ni  les 
echanger  en  aucune  maniere :  il  ne 
leur  sera  permis  d'acheter  des  pro- 
visions que  la  quantite  necessaire 
pour  gagner  le  port  le  plus  voisin 
de  I'Etat  ou  Prince  duquel  ils  ont 
regu  leurs  commissions. 


Article  XXVI 

It  is  further  agreed  that  both 
the  said  contracting  parties  shall 
not  only  refuse  to  receive  any 
pirates  into  any  of  their  ports, 
havens,  or  towns,  or  permit  any 
of  their  inhabitants  to  receive, 
protect,  harbor,  conceal,  or  assist 


Article  XXVI 

II  est  de  plus  convenu  qu'aucune 
des  deux  parties  contractantes  non 
seulement  ne  recevra  point  de  pi- 
rates dans  ces  ports,  rades  ou 
villes,  et  ne  permettra  pas  qu'au- 
cun  de  ses  habitans  les  regoive, 
protege,  accueille  ou  recele  en  au- 


CONVENTION  OF  1800 


509 


them  in  any  manner,  but  will  bring 
to  condign  punishment  all  such  in- 
habitants as  shall  be  guilty  of  such 
acts  or  offenses. 

And  all  their  ships,  with  the 
goods  or  merchandises,  taken  by 
them  and  brought  into  the  port  of 
either  of  the  said  parties,  shall  be 
seized  as  far  as  they  can  be  dis- 
covered, and  shall  be  restored  to 
the  owners,  or  their  factors  or 
agents  duly  authorized  by  them ; 
(proper  evidence  being  first  given 
before  competent  judges  for  prov- 
ing the  property;)  even  in  case 
such  effects  should  have  passed 
into  other  hands  by  sale,  if  it  be 
proved  that  the  buyers  knew  or 
had  good  reason  to  believe  or  sus- 
pect that  they  had  been  piratically 
taken. 


cune  maniere,  mais  encore  livrera 
a  un  juste  chatiment  ceux  de  ses 
habitans  qui  seraient  coupables  de 
pareils  faits  ou  delits.  Les  vais- 
seaux  de  ces  pirates,  ainsi  que  les 
effets  et  marchandises  par  eux  pris 
et  amenes  dans  les  ports  de  I'une 
ou  I'autre  nation,  seront  saisis  par 
tout  ou  ils  seront  decouverts  et 
restitues  a  leurs  proprietaires, 
agens  ou  facteurs  duement  auto- 
rises  par  eux,  apres  toutefois  qu'ils 
auront  prouve  devant  les  juges 
competens  le  droit  de  propriete. 

Que  si  les  dits  effets  avaient 
passe,  pavente,  en  d'autres  mains, 
et  que  les  acqueleurs  fussent  ou 
pussent  etre  instruits  ou  soupgon- 
naient  que  les  dits  effets  avaient 
ete  enleves  par  des  pirates,  ils  se- 
ront egalement  restitues. 


Article  XXVII 

Neither  party  will  intermeddle 
in  the  fisheries  of  the  other  on  its 
coasts,  nor  disturb  the  other  in 
the  exercise  of  the  rights  which  it 
now  holds  or  may  acquire  on  the 
coast  of  Newfoundland,  in  the 
Gulf  of  St.  Lawrence,  or  else- 
where on  the  American  coast 
northward  of  the  United  States. 
But  the  whale  and  seal  fisheries 
shall  be  free  to  both  in  every  quar- 
ter of  the  world. 

This  convention  shall  be  ratified 
on  both  sides  in  due  form,  and 
the  ratifications  exchanged  in  the 


Article  XXVII 

Aucune  des  deux  nations  ne 
viendra  participer  aux  pecheries 
de  I'autre  sur  ses  cotes,  ni  la  trou- 
bler  dans  I'exercise  des  droits 
qu'elle  a  maintenant  ou  pourrait 
acquerir  sur  les  cotes  de  Terra 
neuve,  dans  le  golfe  de  St.  Lau- 
rent, ou  par  tout  ailleurs,  sur  les 
cotes  d'Amerique  au  nord  des 
Etats-Unis ;  mais  la  peche  de  la 
baleine  et  du  veau  marin  sera  libre 
pour  les  deux  nations  dans  toutes 
les  parties  du  monde.  Cette  con- 
vention sera  ratifiee  de  part  et 
d'autre  en  bonne  et  due  forme  et 


510  TREATIES  BETWEEN  THE  UNITED  STATES  AND  FRANCE 


space  of  six  months,  or  sooner  if 
possible. 

In  faith  whereof  the  respective 
Plenipotentiaries  have  signed  the 
above  articles  both  in  the  French 
and  English  languages,  and  they 
have  thereto  affixed  their  seals : 
declaring,  nevertheless,  that  the 
signing  in  the  two  languages  shall 
not  be  brought  into  precedent,  nor 
in  any  way  operate  to  the  preju- 
dice of  either  party. 

Done  at  Paris  the  eighth  day  of 
Vendemiaire  of  the  ninth  year  of 
the  French  Republic,  the  thirtieth 
day  of  September,  anno  Domini 
eighteen  hundred. 

J.  Bonaparte.         [l.  s.] 
C.  P.  Fleurieu.     [l.  s.] 

ROEDERER.  [L.  S.] 

O.  Ellsworth.       [l.  s.] 
W.  R.  Davie.  [l.  s.] 

W.  V.  Murray,      [l.  s.] 


les  ratifications  seront  echangees 
dans  I'espace  de  six  mois,  ou  plu- 
tot,  s'il  est  possible. 

En  foi  de  quoi  les  plenipoten- 
tiaires  respectifs  ont  signe  les  arti- 
cles ci-dessus,  tant  en  langue  Fran- 
gaise,  qu'en  langue  Anglaise,  et  ils 
y  ont  appose  leurs  sceau,  declarant 
neanmoins  que  la  signature  en 
deux  langues  ne  sera  point  citee 
comme  exemple,  et  ne  prejudiciera 
a  aucune  des  deux  parties. 

Fait  a  Paris,  le  huitieme  Jour  de 
Vendemiaire  de  Fan  neuf  de  la 
Republique  Frangaise  et  le  tren- 
tieme  Jour  de  Septembre  mil  huit 
cent. 

(Signe:)     J.  Bonaparte. 

C.  P.  Fleurieu. 

Roederer. 

O.  Ellsworth. 

W.  R.  Davie. 

W.  V.  Murray. 


UNIVERSITY  OF  CALIFORNIA  AT  LOS  ANGELES 

THE  UNIVERSITY  LIBRARY 
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